Crowd Arbitration: Crowdsourced Dispute Resolution Part IV

Crowd Arbitration: Crowdsourced Dispute Resolution Part IV

Part I | Part II | Part III | Part IV

By: Leonora Camner

Crowd arbitration and justice

Can crowd arbitration do justice? It depends, of course, on the definition of justice. According to H.L.A. Hart in The Concept of Law, justice means having like cases being treated alike. H.L.A. HART, THE CONCEPT OF LAW (2nd ed., Oxford, Clarendon Press, 1994), Ch. VII. Only relevant differences should be considered when reaching a different result from another case. Id. Under this definition, crowd arbitration’s justness depends on the consistency of the community in similar cases. Because crowd arbitration uses large samples, it is likely to be much more consistent than traditional arbitration or litigation. On the other hand, the community may be consistent about certain differences that are not relevant, which would be contrary to Hart’s definition of justice. For example, the community might consistently reach decisions unfavorable to African American parties. That would be consistent, but only based on an irrelevant detail of the dispute. In crowd arbitration, these factors might be censored or controlled. Judges, juries, or traditional arbitrators are not necessarily less likely to rely on biases or arbitrary details. Therefore, crowd arbitration provides a way to minimize the reliance on irrelevant details that is not currently possible in other forms of dispute resolution, making it conform better with Hart’s theory of justice.

A more important question to parties, on the other hand, might be whether crowd arbitration can reach the “correct” result. However, how would one determine what the correct result is? Without the aid of a superior intelligence, the human brain is the best tool available to determine correct results. And using the collective intelligence of many people would be more reliable than any single person. While mistakes are likely to be made, without the ability to objectively determine correct results other than human minds, there is really no way to say whether crowd arbitration reaches more or less correct results.

Crowd arbitration can provide due process, depending on whether both parties can submit their evidence and arguments equally and whether there are mechanisms in place to ensure fairness.  See Jaap van den Herik & Daniel V. Dimov, Can the eBay’s Community Review Forum Fairly Resolve Disputes?, 4 PROCEEDINGS OF THE 23RD BENELUX CONF. ON ARTIFICIAL INTELLIGENCE 263  (2011), available at http://ssrn.com/abstract=1955505. Crowd arbitration providers thus need to monitor their process and work on methods to identify biased or neglectful arbitrators. They must make sure there is no way to manipulate their system with arbitrator recruitment. As long as parties can submit their claims fully and equally, and have neutral, uninvolved, and uncompromised arbitrators to decide their dispute, crowd arbitration should be considered due process.

Stay tuned for current forms of crowdsourced dispute resolution!