Mediating on the Internet: Today and Tomorrow

Introduction

This paper will examine Internet opportunities for mediators and mediation participants. We will examine current Internet opportunities as well as where all of this may be taking us. The author suggests that there are unique
qualities and opportunities for mediators on the Internet, including
cost and convenience.

At one level, it may be argued, the Internet is just another communicational medium, like phone or fax or mail. Thinking within this context, more and more mediators choose email and the web for everyday communications and promotion, case management, client homework, agreement drafts, information distribution and pointing to other resources because email and the web are fast (close to immediate) and cheap (close to free).

There are other qualitative differences of the Internet (beyond free and immediate) and associated with a fully connected world that make the Internet more than just another communicational medium. Through email and web strategies, an unlimited number of mediation participants, in comfort and safety and at little or no cost, can be involved in communicating, negotiating
and drafting.

The Internet of today is primarily text based If we squint our eyes and bend our
ears, we see and hear a world in which audio and video comes to be seamlessly
integrated with textual communications. Our online mediation world will
become more and more “real,” allowing for greater and greater
utilization as a means of enhancing and economizing mediation. There
will be great gains in terms of increased participant involvement, enhanced
quality of consideration and cost savings.

Mediation Benefits from Technology

I did my first dozen or so mediations in the early 80’s with a typewriter. This
was right before the word processor and personal computer came on the
scene. I remember fretting that a participant would want to insert a
paragraph or make some other change to their agreement that would force
me to retype an entire page, if not the entire agreement. I was so very
pleased when dedicated word processors came on to the scene, and then
the personal computer with sophisticated word processor capacity. I
am guessing that many other mediators feel similarly blessed by the
word processor.

Over time, our technologic array has grown. I now have one of the latest laptops. I have two businesses on my laptop, family finances and a decade of
family pictures. I am able to bring all of this with me weighing in
at just about 7 lb. Progress being what it is, I notice that I could
now likely get a laptop closer to 5 lb. I now have a computer projector
and traveling printer. I can project an electronic flip chart and have
participants leave a meeting with progress notes in hand. Through the
Internet, an unlimited number of participants can communicate with me
and with one another no matter where any of us are located. Technology
has and continues to support mediation greatly.

Many, if not most, mediators are already using the Internet to some extent to
assist in their mediation business promotion and practice. Many mediators
use email to communicate with clients and colleagues. Many send “attached”
files with email. Many know how to highlight text in a file and to change
font colors. Many now have websites. Our clients are often even more
advanced.

Mediator Use of the Internet — Not A Matter of Either/Or

In terms of performing mediation, the question is whether to use the Internet,
but how, as mediator, we can we best integrate face-to-face, online
and other strategies to be maximally supportive of participant involvement
and ability to reach agreement.

In many mediations, perhaps most, we will ideally have some measure of face-to-face, some measure of online, and some measure of other communication. We as mediators are wise to utilize phone calls, voice mail, faxes, express
delivery and good old snail mail, as we think strategic in a particular
case. The use (or not) of the Internet, like any and all other choices
in mediation, should be a strategic choices based upon the specifics
of the particular case.

Strong argument can be made, however, that the Internet is advantaged over
the other communicational media in terms of its impending ubiquity,
low cost, silence, convenience, and, perhaps, most importantly, its
“asynchronous” nature.

Knowing that best use of the Internet as a general concept depends on the particulars of a case, some mediators, including myself, as a matter of style of practice choice, now reasonably decide that we want to maximize utilization of the Internet and we seek to attract clients on this basis.

Moving Beyond Real Time and Crisis Mediation to Asynchrony

In comparison to “real time” discussions, participants on the Internet (at
least in email and web discussions) do not need to immediately respond
as they are realistically compelled to do in face-to-face discussions.
One’s immediate response (as a participant or mediator) in face-to-face
mediation is not always one’s best response. It is often one’s worst!
Participants will more thoroughly consider and develop options with
a bit of time to fashion their response outside of “the gaze of
the other side.” The asynchronous nature of the Internet offers
participants and the mediator their own contemplative and safe space.

From a mediation perspective, it is suggested that we have falsely worshiped
real-time discussion. Without thinking about it, we often automatically
assume that real time communications are preferable.Yet, whatever the
benefits, there are many problems with real time discussions, particularly
in the world of conflict. Think of the resources committed to and the
fragility of real time discussion systems, be those physical meetings
at a single time and location, group conference calls or video conferencing.
Just how satisfying is it for a participant to be in the waiting room
most of the time while the mediator is in caucus with other parties?
How satisfying is the typical phone conference call? Do we need to be
physically together to make progress? Because of its affordability,
capability, safety and ease, the Internet will force us to reexamine
everything that we do and how we do it.

Hard as it is to believe, we are entering a new world where a good measure of
mediation will be on the Internet, with face-to-face meetings used strategically, but not exclusively, nor even primarily, to make progress. The cost savings and quality of consideration intrinsic to asynchronous discussion
will be the leading factors driving mediation discussions to the Internet.
As the Internet becomes more and more real, it will make less and less
sense to travel and meet at enormous cost.

The realities of scheduling face to face meetings has also historically resulted in
single day sessions being scheduled with, typically, all participants
and all attorneys (and sometimes experts) present. Because of the difficulty
of scheduling the meeting, the cost, and other “battle mentality”
assumptions, this type of civil/commercial mediation often becomes “crisis”
like, often limited to a single tense meeting. The Internet, by contrast,
allows participants, lawyers and the mediator to more beyond a single
crisis mediation session to have a distributed problem solving discussion.

Hold on as we are moving into a period where it is very possible, if not certain,
that the lion’s share of mediation will come to take place on the Internet,
if only based upon cost and convenience factors. While it is often our
tendency to resist change, as mediators we should also recognize that
this will result in more accessible, capable and affordable mediation
for the masses.

Immediate Practical Uses of the Internet by Mediators

1. Use Email for Everyday Communications

While Email is not a panacea for all communications, it is certainly effective for
moving information in a speedy, silent, affordable way. There is little
necessity today (beyond habit) for distributing hard copy correspondence
and materials. You can almost certainly distribute the exact same information,
looking just as good or better, in an instant over the Internet, and
all at virtually no cost. Digital information is also easily stored,
filed and searched. Large file cabinets are on their way out. Setting
up an effective directory structure for client documents and a mail
box for each case makes case management and accessing documents easy.

2. Post and Manage a Descriptive (Public) Website

If you develop and post a web site that you are proud of, you can dramatically
lessen all of your other promotional costs as a mediator. You can commonly
include your URL (your www address) in directory listings at no additional
cost. You can shrink the size of all of your other advertising as all
a consumer or referral source needs to know is your website. Your website
is your first opportunity to impress potential clients and referral
sources with your professionalism and to share with them the nature
of your practice. We know that mediators are commonly selected in an
open market system. It is important that mediators learn to put their
best professional self forward on the web. In the near future, mediator
descriptive sites will including audio and video clips. It can be argued
that, in the mediator market economy, the more information that the
consumer has, the more capable they will be in determining which mediation
services to pursue.

3.Post Forms, Articles and Handouts

In addition to having a public descriptive website, mediators are wise to consider posting forms, articles, handouts and business documents on the web.
Anything that the mediator would regularly send out can be posted, though
not necessarily linked as part of the public web site. The cyber mediator
sends very little, if any, hard copy mail. Having all of your business
documentation posted on the web (nothing fancy) allows the mediator
to respond to inquiries about services with quick preset emails that
include all of the basic client contact information with embedded links
to web pages. In terms of responding to client inquiries and “getting
the case,” you can not beat email which is immediate and free.
An effective email message with a few key website links is a respectful
means of communicating with a potential client or referral source.

4.Use Email for Meeting Notices, Homework and Caucus Discussions

Particularly in cases involving more than two participants, it can be efficient and effective to notify parties of meeting times, changes and the like by
email. It is often good to establish a bit of a protocol with participants
as to how often they will be checking their email (at least every 24
hours unless out of town is suggested).

Email is also a wonderful way of assigning both joint and individual “homework” to mediation participants. Rather than having to come up with the perfect homework assignment during the session, the mediator can simply say
that “some homework” will be coming by email and then, after
the participants have left the office, the mediator can carefully draft
the best possible homework, have a continuing record of the assignment,
and stimulate beneficial participant consideration between mediation
sessions at virtually no cost.

Given this powerful ability to assign participants jointly or individually “homework” questions for response, and because meaningful dialogue and change does occur through Internet discussions, it is suggested that these benefits will move many mediations away from single face to face sessions models, if only to provide the time for Internet discussions to take place.
It may be that we move to a model where there is first a face-to-face
meeting to ensure agreement as to process and to hear initial presentations
and to frame the agenda, but then that most of the ongoing dialogue
will be done more capably and cheaply over the Internet until there
is reason for another physical “summit” to mark off progress
and agreement or to confirm the challenges.

Beyond homework, a good measure of what we are used to doing in caucus discussions can certainly be done online. We caucus in mediation because we know of the benefits of allowing each side the ability to think without the
penetrating gaze of the other side. Most mediators purposefully break
into caucus to create asynchrony, to allow for each participant to be
contemplative and thoughtful, to be better, if not at their best. The
Internet and its asynchrony offer these same “caucus” opportunities
to assist participants to be at their best only much more affordably.

5.Send Draft Agreements as Attached Files

There is great benefit to getting agreement drafts to participants as quickly
as possible and also in a form that: 1) conveys the status of the mediation
dialogue; and 2) gives participants control over the actual text so
that they can fashion new responsive proposal and counter-proposals.

For example, when I draft, agreement terms of a draft that havenot yet
been reviewed by participants for acceptability they are stated in italics

. Provisions that have been reviewed and accepted are placed
in plain text. Provisions that have beenreviewed and rejected
are stricken. When I want to make a comment to participants in the context of the draft agreement, I put that in bold . At the end of a mediation, I strip out the italics, strikeouts and bold text and, viola, we have the Agreement. I also encourage participants to respond to my drafting with responsive provisions in a particular chosen color.

6.Use Nicknames, Mailboxes and Filters for Client Matters

Consistent with our themes of saving time and saving money, it makes sense for the mediator to create a “nickname” or “alias” for a client group. If we have 6 parties and 8 attorneys in a matter, we are wise to simply enter those 14 email addresses one time and then associate a nickname (such as “Smith”) to that group of email addresses.

While we are at it, it makes sense for us to create a “Smith” mail box and for us to transfer all email to that date on the particular case into this case mailbox. We are also wise to advise all participants in the case to utilize the word “Smith” in the Subject Line of all emails in the case. Finally, we can then set a filter in our email program so that all incoming and outgoing email with “Smith” in the Subject Line will be automatically filed in the Smith mailbox.
We accomplish most of our case filing in the process!

7. Other Helpful Tools: Voicemail, Efax and Instant Messaging

Voice mail has come to be accepted and utilized. The reasons are clear: saved labor costs, 24 hour service, worldwide access and full confidentiality. I am convinced that clients like it when I say that I am the only one who checks my voicemail and that they can leave confidential messages. Even in offices that have a real live person answering the phones, there is typically a voice mail back up. Many prefer voicemail for speedy and certain communications.

The Cyber mediator is wise to recognize the cost savings of voice mail and also
the flexibility and confidentiality. If you come to utilize voicemail, be sure to mention your email address and website in your outgoing message! Even when you are not there, potential clients and referral sources can get to know you  from your website. Your voice mail and website are your new and improved electronic waiting area. They are working for you 24 hours a day, 365 days a year. The more memorable that your email and website addresses can be, the better. If they say something about the work you do, all the better.

Efax at www.efax.com is a helpful augmentation to our communicational options. With efax, you can send and receive faxes as email attachments. This saves lots of paper and allows for easy filing in your case email mailbox.

Instant messaging, such as that available from www.icq.com, allows you and
agreeable others to be connected in a real time direct communication
link. I can look at my instant messaging menu and see which of my work
partners are presently on line and, if on line, I can directly and immediately
communicate with them.

8. Subject Lines

In addition to utilizing nicknames for participants in a mediation, creating a mail box for each case and filters to make filing automatic, the mediator is also advised to recognize the importance and power of subject lines. For example, you may have a name for a matter and reference to content such as “School Location: Confirming Identified Options from May 1 Meeting” will allow a filter to be set to the “School Location” mailbox and I clearly identify the content of the message. As more and more communications are by threaded discussion environments, where discussions are summarized by subject lines, it makes great sense to be highly strategic with phraseology here. Subject lines are the mediators first and best opportunity to frame a message, and that frame, through replies, may be carried on well into the future.

The mediator is advised to keep emails short and on subject. It is often better to
send more than one email with different subjects than one long email.
Within each email, have short paragraphs and break where a response
is called for. This will allow participants to helpfully embed their
responses in context.

The mediator should also have an email signature, such as:

~~~~~~~~~~~~~~~

Jim Melamed
www.smartmediator.com
541.345.1629

~~~~~~~~~~~~~~~

This avoids having to sign your name to each email and also provides each recipient with access to your website, which includes all important information.
Remember, the recipient will already have your email address from the email message you are sending, so no real need to repeat.

9. Collect Key Email Addresses

It is also wise for the mediator to collect email addresses of referral sources, satisfied clients, key constituents and the like for purposes of sending a periodic email newsletter. As wonderful as the web is, it is “just
there” and, in the rush of everyday life, it is easy for even those who like you to forget to go to your website. So, we can remind them by sending a monthly or bi-monthly short and email newsletter with 5 or 7 short and sweet items, a couple of which just happen to be on your website. In this way, we can use email strategies to drive traffic to your website. A cheap alternative is to group your email addresses under the “bcc” field and then send your announcement to yourself. Each bcc addressee will get a copy of the message without all of the
addresses listed. This works for up to 50 or so emails, but beyond this you will want an Internet mailing system such as that available at www.mediate.com/services.

10.  Framing Discussions with Email

As examples of how a mediator may frame mediation discussion with email, consider the following samples. Note that these are sample emails that are to be
modified by the mediator, in his or her professional discretion. While imperfect, these mediator communications demonstrate the type of structuring
and framing of discussions that is available through email.

Continued…

                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's 25-year tenure,… MORE >

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