A Brain-Based Analysis of Online Mediation

Introduction

For many dispute resolution professionals, “online” is still a dirty adjective that just should not be associated with mediation. The main reason invoked by those professionals to oppose themselves to the use of online mediation is that online is not and simply can’t be a “normal” or “true” social interaction and that the technology is not reliable enough for such a difficult process as conflict resolution.

For some other professionals, online mediation is a no-brainer: it’s a great substitute to face-to- face mediation for parties who might never have the time and/or money to travel several thousand kilometers to meet each other in a neutral place – and yes, online mediation has some disadvantages, but they are clearly offset by its advantages. Let us submit for your consideration two case studies to help you reflect on those positions.

Case # 1:

In an international commercial dispute, an Australian party who we will call John and a French party who we will call Jacques agreed to meet face to face in Singapore, since it was judged to be sort of half-way between Paris and Sydney. Being both very busy business people with a limited budget, they agreed through their counsels to limit the negotiation to two days, even though the mediator had suggested that the complexity of the case could make that period not long enough to resolve all the matters at stake. The sessions proved out to be even more difficult than what the mediator had expected. The clock ticked and ticked and after 47 hours of a lot of mediation and little sleep, the tension was at its peak and the red-eye parties and their counsels had to agree that the two days were indeed not going to be enough. None of the people in the room thought about going back home and schedule video conferencing sessions to finish the job: the mediator was totally unfamiliar of “new” technologies and the parties as well as the mediator had their cognitive resources so depleted that they probably were not thinking as rationally as what they believed they were. John’s counsel’s suggestion of extending the session by one day was flatly rejected by Jacques since he had purchased two non-refundable and non- changeable tickets from Paris in economy class and did not want to engage extra expenses. Jacques vehemently argued that he had already made a bigger effort than his counterpart to travel 13 hours as compared to the mere 9 hours from Sydney and added that “all of this would have been resolved if the Australian party was more cooperating”. This triggered a classical exchange of very negative accusations until that Jacques slammed the door and ran to the airport to catch his non- refundable and non-changeable flight, with his seventy-year-old counsel panting a few meters behind him. The case went to arbitration and cost to Jacques the price of a space travel with Virgin Galactic.

Case # 2:

In an international commercial dispute, an American party who we will call Jim and a Chinese party who we will call Chang agreed through their counsels on the fact that online mediation was a very good medium: it was not only cost-effective but was going to allow them to resolve their conflict without seeing each other, which was the last thing they wanted to do. They asked the mediator to do an online shuttle negotiation between them, using private video conferences. After several days into the process, Jim started to complain to his counsel about the fact that he could not discuss face to face with Chang: thanks to the patient questioning work of the mediator, he had realized that what he expected from the other party was a good and sincere apology above all financial considerations. He thus accepted the organization of a 3-way video conference gathering all the parties, their counsels and the mediator. Alas, after only fifteen minutes in the session, he abruptly asked to Chang why he had a “permanent sneer of contempt on his face” and why he was “refusing to look him in the eyes” while he was speaking. Maybe the sneer was in Jim’s head and maybe Chang had on his face his best expression of empathy, in any case it was an expression to which Jim had never been exposed to until that moment. What was being seen as a great advantage by the parties at the beginning of the mediation – staying at 6000 kilometers of each other – turned out to be the fatal “coup de grace”: without changing his facial expression, Chang ended the video conferencing session by a click of his mouse and refused to ever speak again with Jim. The case went to litigation and cost to both parties more than the budget to meet face to face anywhere on the planet (with a good intercultural training as a bonus).

We believe that those two cases illustrate how the perspectives of “opponents” and “adopters” of online mediation are neither right nor wrong but that – as usual in mediation – it depends on the context. So where do we go from here?

What we are about to do in the next pages is to move away from the positions of the “opponents” and “adopters”, analyzing the pros and cons of online mediation using the recent findings of neuroscience. First of all, we will define what online mediation is and characterize its different variations; then we will present “brain-based” criteria we have chosen to make our analysis and then will apply those criteria to the different categories previously defined to list pros and cons of each one of them.

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Ana Gonçalves

Ana Gonçalves is a coach, trainer and mediator, and the founder and president of the ICFML - Instituto de Certificação e Formação de Mediadores Lusófonos.  Ana is Co-Chair of IMI’s Online Dispute Resolution Taskforce. MORE >