Abstract
Excerpted From: Oladeji Tiamiyu, Amy Schmitz and Colin Rule, Technology Driven Racial Reconciliation: A Practical Guide for the Use of Technology in Truth Commissions, 38 Ohio State Journal on Dispute Resolution 59 (2023) (142 Footnotes) (Full Document)
America's historical challenges grappling with racial tension and distrust of state institutions have been highlighted in the aftermath of the George Floyd protests and social movements that have arisen to contest police brutality. These social movements have mobilized a multi-generational, multiracial coalition, expressing dismay with ongoing social inequities. At the same time, multiple district attorneys have recognized the value in creating truth and reconciliation commissions to help address complaints and issues raised by these coalitions. With their focus on addressing systemic issues through community engagement, a truth and reconciliation commission (TRC) 61 can advance much needed transformative change--even in the United States where racial inequities run deep. TRCs offer the possibility of promoting much needed dialogue--allowing for valuable communication between different groups while creating an environment conducive for restorative justice.
At the same time, technology has become an essential component of communication in the modern era. Accordingly, incorporating technology into the system design of these commissions can introduce unique benefits for facilitating dialogue and promoting understanding on topics that, despite being ever-present, have historically divided different communities. Moreover, the ongoing health-related restrictions implemented in response to the coronavirus pandemic have highlighted that technology is not just nice to have, but increasingly essential to safely facilitate communication. Furthermore, technology opens doors to uniquely flexible communication that is not possible in traditional in-person processes. For example, the Supreme Court has seen considerable support from much of the general public for the expansion of technology-enabled communication to ensure live audio streams, even after the COVID pandemic subsides. Despite these benefits of technology in expanding communication, attention must be paid to the complicating factors that technology can introduce into reconciliation dialogues.
Technology and computer-mediated communication (CMC) have become mainstays of our modern society. Individuals now utilize technological tools in almost every area of their lives, and they expect to be able to leverage the same tools in resolving their disputes. As a result, technology has become increasingly critical for dispute resolution systems. This is especially true for TRCs because they involve many stakeholders and an expansive set of complex issues. TRCs' effectiveness relies on their ability to integrate restorative principles and implement restorative practices. Restorative justice has been defined as “a process to involve, to the extent possible, those who have a stake in a specific offense and to collectively identify and address harms, needs, and obligations.” The three principles underlying restorative justice are: (1) in recognizing that a harm to one is a harm to the broader community, justice requires addressing the underlying harm; (2) harms create obligations requiring accountability; and (3) stakeholders impacted by the harm should participate in the restorative processes. In incorporating these restorative practices and principles, TRCs are different than traditional dispute resolution systems that focus on individualized dispute resolution between a limited number of individuals.
It is this difference that makes TRCs capable of addressing systemic problems following national and regional crises. Consider, for instance, that commissions have previously been used to address a variety of issues, from atrocities during Guatemala's 36-year civil war to exploring the historical consequences of imperialism in Korea to most recently state-sanctioned human rights violations in The Gambia. In addressing such challenging systemic issues, TRCs necessarily depend on a diverse range of stakeholders, often with conflicting interests and distinct experiences. As such, the use of diverse communications channels to maximize engagement between stakeholders is of vital importance to a truth commission's effectiveness. This article therefore aims to provide a blueprint for using technology in TRCs that acknowledges and addresses pitfalls of online communication.
Section II of this article discusses how technology can support a TRC's investigation and reconciliation initiatives by promoting stakeholder engagement, facilitating genuine personal connections, and promoting greater flexibility in the TRC's system design. This Section describes how the online dispute resolution (ODR) industry, particularly as seen with family law disputes, has demonstrated how technology can be leveraged to promote understanding and agreement regarding challenging topics. Section III seeks to emphasize that technology-driven systems should be seen as a complement, rather than a replacement, to physical interactions to expand how and when individuals can engage in proceedings. Section III also argues that well-designed online spaces can overcome the challenges some social media platforms have experienced. Providing an alternate paradigm to problematic social media platforms continues to be of immediate value for civil society and the tools are currently available to capture the benefits of online spaces while limiting the harms. Section IV concludes.
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There is little doubt that technological innovation is relentlessly pushing civil society online. Every day more industries, public agencies, and non-governmental organizations are migrating their activities from an in-person environment onto the internet. This change was already inevitable, but the pandemic has accelerated it markedly. This migration has already transformed the way we work, play, and communicate in ways that would have been unimaginable just thirty years ago. As these transformations continue, we must find ways to leverage the online spaces that communities are increasingly inhabiting to address societal conflict.
Truth and Reconciliation Commissions have already proven to be powerful processes for opening dialogue, enabling people to be heard, and restoring a sense of justice in the wake of conflict or crimes. As dialogue remains paramount to the process, system designers must consider how technology can be incorporated to promote flexibility and ease of communication among stakeholders. Doing so can lower the barriers of entry. Participants in TRC processes expect access to work with their daily digital lives. If they can use their phones for their daily lives, why not use that same phone to voice their views on important issues of racial inequality? If a student is asked to attend school online, why should that student be restricted from voicing their opinions on policing online? The current generation in particular is no longer willing to engage in paper-based processes that occur exclusively in person, even if those processes were acceptable to their parents and prior generations. It can be exclusionary to require that everyone have the time and resources to attend an in-person process. As a result, TRCs must leverage the online environment to not only stay relevant, but also to become more transparent, accessible, and effective.
This evolution will not be without challenges. Technology has proven to be a tool that promotes division, just as it has capabilities to catalyze mutual understanding and connection not limited by geography. Technology opens doors to new ideas and new audiences, but it can fall victim to new villains. Indeed, the time has arrived to set best practices and develop a framework for using technology in TRCs. This can be exciting and inviting--but it is important to come into the digital dispute system design with eyes wide open. This article thus introduced ways technology can be used to further a TRC's dual mandate in a manner that serves as a complement to in-person processes.
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Oladeji Tiamiyu, Licensed attorney, Clinical Fellow at Harvard's Negotiation and Mediation Clinical Program. Graduate of Harvard Law School, J.D.
Amy Schmitz , John Deaver Drinko-Baker & Hostetler Endowed Chair in Law, The Ohio State University Moritz College of Law, The Ohio State University Co-Director of the Translational Data Analytics Institute Responsible Data Science CoP, and Co-Chair of the Technology in ADR Committee of the ABA Section of Dispute Resolution.
Colin Rule , CEO of Mediate.com, Arbitrate.com, and ODR.com, co-founder of Modria.com, former Director of Online Dispute Resolution at eBay and PayPal, Co-Chair of the Advisory Board of the National Center for Technology and Dispute Resolution at Umass-Amherst.
