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ODR for All: Digital Accessibility and Disability Accommodations in Online Dispute Resolution

by David Larson, Lainey Feingold

May 2018

 

Introduction 

Digital accessibility is about making sure people with disabilities can use and interact with technology. Digital accessibility ensures participation of people who use computers and mobile devices but cannot see a screen, hear a video, hold a mouse, or have other disabilities impacting how technology is used.  

The promise of online dispute resolution (ODR) depends on accessibility.  Without it, ODR cannot meet the needs of its stakeholders.  Why?  Because accessibility and ODR have one very important thing in common:  they are both about serving the needs of people.

Accessibility allows ODR systems to reach the greatest number of people possible. 

Websites, mobile applications, software platforms and other technologies are accessible when developed and designed to internationally recognized accessibility standards. But design and development are not enough. A host of best practices related to business processes, training and more exist to bake accessibility into systems.

Systems like ODR. 

While accessibility is a civil and human right of disabled people, accessible ODR platforms and content benefit more than people with disabilities. Accessibility is essential for some, useful for all. 

Just as curb ramps aid parents with strollers along with wheelchair users, captioned video content benefits anyone in a noisy environment along with deaf and hard of hearing people.  A well designed easy to navigate website benefits aging boomers along with people with cognitive and other disabilities.

Universally designed digital content benefits everyone.  

We wrote this article to offer ODR system designers; practicing neutrals such as mediators and arbitrators; information technology professionals, private and public decision-makers; and policy makers essential information and tools to build and maintain systems that work for everyone. One of us is an expert in ODR, and the other an expert in digital accessibility law and policy. We’re excited to merge our passions and offer these resources and ideas to the ODR community in both the public and private sectors.

It is extremely important that the ODR community focus on digital accessibility right now because ODR systems are being implemented around the world. The British Columbia Civil Resolution Tribunal, for example, began accepting small claims cases under $5000 in June 2017. By February 2018 it had already handled almost 14,000 cases and 85% of cases resolved in that time period were settled. With this type of success, we can expect that ODR increasingly will be used to resolve judicial disputes.

We hope readers will share ideas for making ODR a model of accessibility across the globe. People everywhere will be grateful to discover useful systems that provide access to justice and are truly usable by everyone.

II Disabled People Use Tech and Need Accessibility

Any discussion of accessibility must start with the people who depend on it -- people with disabilities. Disabled people can use today’s digital tools. But only when websites, mobile applications, conferencing platforms, and other technologies are designed and developed with accessibility in mind.

People with disabilities access today’s technology -- and will access tomorrow’s ODR systems -- in different ways:

>    Not everyone can hear. Accessible websites and mobile apps must provide captions for all video content.
 
>      Blind people may be able to hear video content, but can they find the video player on the page, operate the controls, adjust the volume? Only if the video player is coded to be accessible.
 
>     Many people cannot use a mouse. Instead they rely on the standard keyboard or on a specialized one that allows characters to be entered with one hand like a chord on a piano. Some disabled people without use of their hands use a mouthstick or eye tracking to input data. Voice recognition software (like Dragon Dictate) allows for voice activated input. Read more about this type of technology, which frequently is referred to as assistive technology. None of these alternative input methods work unless a site (including an ODR system) is designed and developed to accessibility standards that, among other things, require all functionality to be available without use of a mouse.
 
[To experience what inaccessibility feels like, readers are encouraged to put away a mouse for 15 minutes and use only the space bar, tab and enter keys, and up, down, left, and right arrows to navigate a webpage. Readers will quickly discover which site owners have thought about accessibility.]
 
>      Blind people, and the one in 12 men who are color blind, either cannot see color at all or cannot distinguish between certain colors. Accessibility principles remind developers and designers not to use color as the only means of conveying information. The light gray text on a white screen that is so hard for so many to read? Accessibility principles embrace color contrast requirements that enhance readability for everyone.
 
>      Accessible websites don’t have the blinking and flashing content that annoys everyone, because for people with certain cognitive disabilities or epilepsy, those annoying features render sites unusable.
 
Around the world, consistently higher numbers of people will access ODR systems on mobile devices. An impressive 95% of Americans now own mobile phones, 77% own smartphones, and among those 77% one in ten accesses the internet only through his or her smartphone without traditional home broadband service. As with computers, disabled people can access mobile devices -- even without a keyboard -- assuming websites and applications are designed to mobile accessibility standards. 
 
Both Apple and Android publish accessibility standards so developers can build applications that work for everyone. These standards are online at Accessibility on iOS and Accessibility on Android.
 

III Accessibility in ODR

 
As readers know, the “O” in ODR stands for online. We are reminded of the statement made by inventor of the World Wide Web Sir Tim Berners-Lee on the launch of the web accessibility initiative in 1997:
 
“The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect.” — Tim Berners-Lee
 
We believe that accessibility is also an essential aspect of ODR. Every element of ODR information and communications technology -- systems, content, and processes -- must be accessible for ODR to be truly universal. 
 
Although many of us may think about alternative dispute resolution (ADR) and ODR as distinct processes, ODR really is just a form of ADR. In fact, the label “Online Dispute Resolution (ODR)” is a little misleading. When most practitioners use the term ODR, they typically are referring to dispute resolution processes that not only rely on the internet but also may be supported or assisted by other technologies as well as “real life” experiences. A more accurate term would be technology-assisted dispute resolution, but the term ODR is typically used.
 
“Technology” includes everything from telephones to websites, mobile apps, electronic meeting rooms, fax machines, mobile devices, and Near Field Communication. Dispute resolvers have been using some of these technologies “offline” for decades and they are an essential part of our dispute resolution practices. 
 
ODR systems, or “platforms,” already are available that allow parties to resolve their disputes entirely online. ODR system designer may encourage parties to keep every communication on the ODR platform for reasons that include confidentiality and accountability. Dispute resolution professionals, however, may use online tools along with “offline” technologies such as the telephone or even a possible in-person meeting.
 
 All of these technologies and communication options must be accessible. This includes comprehensive ODR platforms where accessibility for all online interactions can be designed and monitored for accessibility.
 
Access to justice is a core value and a driver of ODR. Here are just some of the places ODR systems need accessibility so that “everyone regardless of disability” will be able to fully participate.
       
  • Dashboard: The dashboard is the control center for an ODR platform; where information needed to understand the platform is organized and presented. Just as a driver cannot safely drive a car without understanding its dashboard, an ODR participant will not be able to use the platform if the dashboard is not accessible.The system will fail.
  • Participants: Accessibility is too often thought of only in terms of the end user, in our case the parties to a dispute. But any system participant may need accessibility. Neutrals, court clerks, attorneys, or systems administrators may be disabled. Computer users with disabilities may be anywhere (and everywhere) in the process.
  • Sign-up/registration: While every web page and mobile application screen that is part of an ODR system must be accessible, particular attention must be paid to the earliest steps in the process to avoid frustration by disabled participants. Accessible coding and design, and solid usability testing, are imperative to avoid early drop-out rate and participation refusals.
  • Authentication: Security and confidentiality demand that each person on the ODR platform is the person he or she claims to be, or is authorized to act on someone else’s behalf. Authentication is a critical issue when we use technology to resolve disputes. The process or procedures we use to confirm identity must be accessible.
  • Conferencing Platform: Conferencing accessibility is essential to ODR systems. Careful attention must be paid to ensure that everyone has an equal opportunity to participate in video or audio-only conferences. Key aspects of platform accessibility include
    • effective communications for deaf and hard of hearing participants, including captions and/or sign language interpreters. Video remote interpreting, if used, must be carefully monitored and follow best practices.
    • audio description for blind participants to describe visual elements of any visual video content;
    • accessibility of the platform itself. All functionality must be accessible, including chat windows, sign-in, volume control, mutability, etc. 
 
As with all technology, specialized vendors are available to assist with ensuring accessible conferencing platforms. And as with all vendors, careful vetting for experience is critical and references should always be obtained.
 
  • Email: As with all forms of communication that comprise ODR systems, email systems must be coded to accessibility standards and tested as per the best practices listed below.
  • Chat programs: The ability of participants to share or provide information through a chat program must be accessible. (This may either within or independent from the conferencing platform.)
  • Digital Signatures: If parties are expected to sign documents as part of an ODR process, care must be taken to ensure that electronic signature software is usable by everyone.
  • Electronic Documents: Documents are essential to most legal processes and ODR is no exception. If systems users and administrators can download documents the downloading tool must be usable by all. The documents themselves must be readable by all participants. PDF/UA is the ISO standard for universal accessibility ensuring PDF documents are available to the largest audience of readers possible. Documents generated in Word, Excel, and of course HTML can be made accessible -- including all aspects of those documents such as complex data tables and other visual elements.
  • Phone Systems: Sometimes ODR includes old-fashioned telephone conversations. All participants must be familiar with Telecommunication Relay Services (TRS) -- federally established communication systems that allow deaf and hard of hearing people, as well as people with speech disabilities, to place, receive, and participate in phone calls. As the US Federal Communications Commision states on its website:
 
If you hear, "Hello. This is the relay service…" when you pick up the phone, please don't hang up! You are about to talk, through a TRS provider, to a person who is deaf, hard-of-hearing, or has a speech disability.
 
To allow deaf and hard of hearing individuals, and people with speech disabilities calling via TRS full and equal participation in telephone discussions, all ODR participants must be mindful of the time lags that naturally result when spoken English is being translated into ASL or transcribed into English, and vice versa.
 
  • Architectural accessibility: When ODR mediations, arbitrations, or meetings are held in the built environment, that environment must be accessible to people with physical disabilities. This not only means that the meeting room(s) must be wheelchair accessible, but the restrooms must be too. If the meeting host (mediator, lawyer, etc.) does not typically operate in an accessible space, policies must be in place to hold the meeting, mediation or arbitration in an accessible space. 
 
Both the physical location, the documents, and the technology employed at that location must be accessible. If a mediator, arbitrator, or other third party neutral hands out a paper copy confidentiality statement, for example, or uses technology to summarize or illustrate progress that is being made during an in-person meeting, that information must be presented in an accessible manner.
 
This is not something to have to scramble around for at the last minute. Policies, plans, and vendors should be in place for smooth handling when the need arises.
 
  • Sign Language Interpreters and other communication services: Just as effective communication for deaf and hard of hearing participants is crucial for digital conferencing platforms, so too must communication needs of disabled participants be met in a real world setting. Sign language interpreters or Real-Time Captioning, known as CART (Communication Access Real-time Translation) must be available to those who need it.
 
  • Got paper? You need alternative formats: When ODR interactions occur in person anything distributed in paper format must be made accessible to people who cannot read standard print. Alternatives to print (known as alternative formats) include braille, large print, and accessible electronic formats. The person needing the accommodation should be consulted with to determine effective alternative formats.
 

IV What’s Law Got to Do With It?

 
ODR systems must be fully accessible in order to include all potential users around the virtual (or actual) table. But accessibility is not just the right thing for ODR providers to do. It’s also the law both in the United States and, increasingly, around the globe.
 
A full analysis of the legal foundation for accessible ODR platforms, systems, and content is beyond the scope of this article. Here are but a few examples of law and policy mandating accessibility around the world that ODR systems designers must be aware of.
 
  • The United Nations Convention on the Rights of People with Disabilities (UNCRPD) is a treaty ratified by more than 170 nations (although not the United States) that includes obligations for digital accessibility. Among other things, Article 9 requires signatories to “promote access for persons with disabilities to new information and communications technologies and systems, including the Internet.” Article 21 includes the obligation of “Accepting and facilitating the use of sign languages, Braille, augmentative and alternative communication, and all other accessible means, modes and formats of communication of their choice by persons with disabilities in official interactions.” And And Article 13 ensures effective access to justice for persons with disabilities.
  • Governing bodies around the world are increasingly mandating that digital properties and content be accessible. The Web Accessibility Initiative of the World Wide Web Consortium (W3C) maintains a list of international accessibility laws and policies
  • Courts in the United States increasingly recognize that the Americans with Disabilities Act (ADA) is flexible enough to embrace the online world. The ADA covers the activities of state and local governments, including court systems, where ODR can be a great benefit to the public. And it ensures that disabled people can fully participate in all that private public accommodations offer. Online dispute resolution is one such offering. The ADA’s “effective communication” obligations for both public and private covered entities is also a strong piece of the legal foundation requiring accessible ODR.
 
While specific digital accessibility regulations have not yet been incorporated into Americans with Disabilities Act, courts have begun to recognize the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA as the most well established method of meeting the ADA’s non-discrimination provisions when it comes to websites. (See, for example, the court order in a web accessibility case against Five Guys Enterprises, LLC.) WCAG 2.0 AA has been the identified accessibility standard in almost all private settlement agreements and those resolved by the United States Department of Justice.
 
  • Section 508 of the Rehabilitation Act of 1973 requires that all United States government technology purchases be accessible. Most states in the U.S. have similar procurement statutes. Government purchases of ODR systems, including purchases by court systems, will only increase in the coming years. 
 

V Best Practices for Digital Accessibility in ODR

Accessibility is the law, and it’s the right thing to do to fulfill the promise of ODR. Here are some core smart practices to make sure ODR systems are accessible.

           

  • Adopt an Accessibility Standard: The international standard for web, mobile, and document accessibility is WCAG 2.0 Level AA and is our recommended standard for all ODR systems. WCAG 2.0 AA and any successor guidelines promulgated by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (w3c) should be integrated into all ODR processes to ensure accessible content. System authoring tools must also be accessible. WAI’s authoring tools guidelines address this important component of ODR systems.
 
  • Read and comply with ODR principles and standards.Although ODR still is in its early stages, already significant work is being done to ensure that ODR increases access to justice for everyone. Much of the attention has focused on differences in power and sophistication that may exist between the disputing parties. Understanding and addressing these concerns will protect everyone, including persons with disabilities.
The International Council for Online Dispute Resolution (ICODR), building on The National Center for Technology and Dispute Resolution’s “Principles for ODR Practice,” has identified Ethical Standards for ODR. Many of these Standards provide support for digital accessibility design features.
 
ICODR believes that quality ODR programs must be:
  • Accessible: ODR must be easy for parties to find and participate in and not limit their right to representation. ODR should be available through both mobile and desktop channels, minimize costs to participants, and be easily accessed by people with different physical ability levels. (The authors of this article recommend that the term “accessible” as traditionally used in the ODR field be expanded to include digital accessibility for disabled people).
  • Accountable: ODR systems must be continuously accountable to the institutions, legal frameworks, and communities that they serve.
  • Competent: ODR providers must have the relevant expertise in dispute resolution, legal, technical execution, language, and culture required to deliver competent, effective services in their target areas. ODR services must be timely and use participant time efficiently.
  • Confidential: ODR must maintain the confidentiality of party communications in line with policies that must be made public around a) who will see what data, and b) how that data can be used. (The authors of this article would add that “[T]here cannot be confidentiality for people with disabilities without accessibility”).
  • Equal: ODR must treat all participants with respect and dignity. ODR should enable often silenced or marginalized voices to be heard, and ensure that offline privileges and disadvantages are not replicated in the ODR process.
  • Fair/Impartial/Neutral: ODR must treat all parties equally and in line with due process, without bias or benefits for or against individuals, groups, or entities. Conflicts of interest of providers, participants, and system administrators must be disclosed in advance of commencement of ODR services.
  • Legal: ODR must abide by and uphold the laws in all relevant jurisdictions. (The authors remind readers that this, of course, includes laws relating to accessibility and non-discrimination.)
  • Secure: ODR providers must ensure that data collected and communications between those engaged in ODR is not shared with any unauthorized parties. Users must be informed of any breaches in a timely manner.
  • Transparent: ODR providers must explicitly disclose in advance a) the form and enforceability of dispute resolution processes and outcomes, and b) the risks and benefits of participation. Data in ODR must be gathered, managed, and presented in ways to ensure it is not misrepresented or out of context.
 
  • Designate a digital accessibility coordinator. Put someone in charge of accessibility so the buck has somewhere to stop. Decide carefully where that person sits. At Microsoft, Chief Accessibility Officer Jenny Lay-Flurrie has a C-Suite position. In his 2011 book Strategic IT Accessibility: Enabling the Organization, author Jeff Kline urges a “neutral placement” of the accessibility head so the position can reach across all the different silos that comprise today’s organizations. To ensure that accessibility moves beyond compliance, take care to think broadly and avoid automatic placement in the legal or risk department.
  • Include accessibility in all requests for proposals involving digital content and technology: The Americans with Disabilities Act prohibits discrimination “directly, or through contractual, licensing, or other arrangements.” In the context of the digital world this means making sure all vendors understand accessibility. Language that technology vendors “following the law” is not enough. Organizations must specify accessibility standards in every RFP and require testing by disabled people (see below) before product delivery.
  • Include accessibility in all technology contracts: Once a contract is awarded, accessibility requirements must be described with specificity. Think about the level of detail demanded with security and privacy requirements and use that same high standard with accessibility. In the Winn-Dixie order (currently on appeal and stayed pending a bankruptcy filing), the judge found that “the fact that third party vendors operate certain parts of the Winn-Dixie website is not a legal impediment to Winn-Dixie’s obligation to make its website accessible to the disabled. First, many, if not most, of the third party vendors may already be accessible to the disabled and, if not, Winn-Dixie has a legal obligation to require them to be accessible if they choose to operate within the Winn-Dixie website.” Read more about best practices for technology vendor contracts.
  • Train staff (and maintain training):  Training staff about digital accessibility is not only about educating coders, designers, and content writers about accessibility standards and accessible design principles. Every public-facing staff in every organization that is part of the ODR ecosystem must be familiar with the basics of how disabled people use computers and other digital devices, and how to escalate issues to an appropriate person. In her book, Structured Negotiation, A Winning Alternative to Lawsuits, Lainey shares stories about a common trigger for many accessibility Structured Negotiations as well as lawsuits: consumers getting poor customer service from untrained staff. Not surprisingly, staff training was an element of the Winn-Dixie court-ordered injunction.
  • Adopt testing protocols that include disabled people: Ongoing testing is critical to make sure accessibility sticks. Automated tools can provide useful data, but should never be used alone — human input is critical to any testing program. And testing by disabled people must be a regular aspect of a digital program. Usability testing can and should incorporate disabled technology users. Testing obligations are consistently included in legal settlements of digital accessibility cases.
  • Hire a consultant if needed. Public and private entities must treat accessibility as they would any other aspect of their organization: if there is no in-house expertise, hire someone to help. To rely on an old proverb, digital accessibility consultants should ideally not cook and serve you the fish; they should teach your teams how to fish. Always interview at least two or three potential consultants. Check references. Taking accessibility seriously pays off.
  • Shout it from the rooftops: Have an easy-to-find Accessibility Information Page linked to every ODR page:An Accessibility Information Page (AIP), also known as an Accessibility Statement, demonstrates an organization’s commitment to accessibility. And it gives disabled users a place to go if they encounter a problem with an ODR platform — instead of calling a lawyer or being locked out of participation. The European Union Web and Mobile Accessibility Directive requires public sector bodies to publish Accessibility Statements. The UK has recently published requirements for what is needed in the statement.
Among other things, a good page(s) should clearly state the organization’s digital accessibility policies and services and include both a phone number and email address (or a simple and accessible form) for a site visitor to report a problem or get help. Most importantly, the person on the receiving end of the phone call or email must be prompt and responsive. Examples of Accessibility Statements in public, private, and academic settings can help guide new pages.
 
  • Put accessibility enhancements in release notes: Another way ODR proponents can let the public know of their accessibility commitment is by including enhancements in standard release notes. In a 2016 settlement agreement reached in Structured Negotiation, E*Trade agreed to “include information about accessibility improvements, as applicable, in the release notes for new E*Trade Mobile App releases.” This is one of many factors contributing to the company’s leadership role in digital accessibility.
  • Make accessibility part of appropriate job descriptions and evaluations: If someone’s job touches accessibility, accessibility should be included in that person’s job description and evaluations.This shows staff that accessibility is an important aspect of their work. It is a proactive way to avoid the type of problems that underlie legal action about digital access.
  • Soup to Nuts, Evaluate your systems: Digital accessibility is not only about websites and mobile applications. Every aspect of ODR systems, as discussed above, intersects with accessibility because disabled people may be the next ODR disputant, mediator, lawyer, judge, or court or company personnel. Emails often contain accessibility barriers and are overlooked when thinking about website access. Lawsuits have focused on the accessibility of learning management systems and streaming video services. Digital services, including services increasingly being offered in courthouses and government agencies, are typically part of stand alone kiosks — kiosks that must be accessible. Read more about kiosk accessibility and the law.
Different teams may be responsible for different digital aspects of an ODR system, but a holistic approach to accessibility saves money, leverages resources, and ensures that the public is not inadvertently left out of any aspect of the dispute resolution process.
 
  • Have accommodation policies in place for off-line interactions. As discussed above, participants in off-line ODR meetings may need an accessible space, sign language interpreters, or alternative formats for print materials. Don’t wait until the last minute to meet these accommodation needs. Policies should be in place that describe offered accommodations. Know where meetings will be held if architectural accessibility is needed, and be ready with contact information for reputable interpreter or CART service-providers. Have a plan in place to ensure document accessibility. (The law requires that all documents provided by ADA-covered entities be accessible; accessible electronic or web-based documents should not have to wait for a request.)
  • Create a culture of accessibility:   Accessibility in ODR is a way of creating the broadest possible access to justice. It is a tool to make all participants feel heard - a core value of successful dispute resolution. But accessibility is not a “one and done” thing. A culture of accessibility is needed to avoid slippage at the next mobile release, with the next tech procurement. Motivating all aspects of an organization to embrace and maintain accessibility ensures consistent commitment to disabled participants. Make accessibility something to be proud of: recognize key players, give awards, value small steps in building a truly inclusive culture in all ODR programs.
The goal of these best practices is to create that culture so accessibility becomes an inherent part of all ODR systems. As each new type of technology or information is introduced in the ODR community, accessibility must be there from the beginning, as an integral way of doing business and providing both private and government services.
 
When accessibility is an afterthought, it is far more expensive and can create frustration and non-participation by ODR stakeholders. The ODR community must embrace disability accommodations and digital accessibility. Not as compliance checklists, but as fundamental aspect of how ODR systems are designed and implemented around the world.

 

David Larson

Professor of Law, Senior Fellow and former Director, Dispute Resolution Institute, Hamline University School of Law. Professor Larson was a member of the American Bar Association’s E-commerce and ADR Task Force, was one of the founders of the International Competition for Online Dispute Resolution, created the ADR and Technology course for Hamline University, and was a U.S. West Technology Fellow. He was the founder and Editor-in-Chief of the Journal of Alternative Dispute Resolution in Employment, a Hearing Examiner for the Nebraska Equal Opportunity Commission, an arbitrator for the Omaha Tribe, and currently serves as an independent arbitrator. He is a Qualified Neutral under Minnesota Supreme Court Rule 114; his other articles discussing Technology Mediated Dispute Resolution are available at http://ssrn.com/author=709717.


Lainey Feingold is a disability rights lawyer focusing on digital access, an international speaker, and the author of Structured Negotiation, A Winning Alternative to Lawsuits. Lainey’s book is packed with win-win stories of legal advocacy with some of the largest organizations in the U.S., all without lawsuits. In 2017 Lainey was named one of the 13 Legal Rebels by the ABA Journal, the national magazine of the American Bar Association. That year she was also named the individual recipient of the John W. Cooley Lawyer as Problem Solver award, given annually by the Dispute Resolution Section of the ABA. Lainey has twice been recognized with a California Lawyer Attorney of the Year (CLAY) award (2000 and 2014) for her digital accessibility and Structured Negotiation legal work. 

 

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., OnlineMediators.com or of reviewing editors.