Many of the mediators I speak with are profoundly skeptical about online dispute resolution (ODR). Several ADR professionals with years of experience have approached me at various conferences and meetings, patted me on the shoulder, and informed me that online dispute resolution won’t work. One person even told me that “online dispute resolution” is an oxymoron, because dispute resolution, by definition, must be face-to-face.
I understand this sentiment. American society is still wrestling with the Internet and the possibilities it presents, and in the current rah-rah climate of “the Internet will change everything” it is easy to get skeptical. Many of the companies who thought that the Internet was going to re-invent traditional industries (gardening, furniture sales, pet products, toys, etc.) are now out of business. Some in our field are content to wait a while and see if any of the talk and activity around online dispute resolution will really amount to anything.
When we started the Online Resolution project at MIRC (the Mediation Information and Resource Center, at www.mediate.com) we focused exclusively on online disputes. These are disputes that arise online, between two people who have never met and probably never will meet. The Online Ombuds Center’s pilot program with eBay handled these types of disputes: buyers and sellers on eBay are usually separated by great distances, they have no prior relationship, and they will probably never meet face-to-face. However, it’s undeniable that they experience disputes, and they can probably benefit from some type of assistance in resolving those disputes. Most ADR professionals are comfortable with ODR in these types of online-only contexts, if only because face-to-face mediation is virtually impossible.
As our project continued, we started to get more face-to-face disputes coming in the door. We referred a good number away to face-to-face mediators at the beginning, along with the reasons why we thought a “real” mediator would be a better choice than a “virtual” one in each situation. But the parties pushed back, insisting in some cases that online dispute resolution was what they wanted. I acknowledge that just because the parties want to do something doesn’t mean it’s appropriate for an ADR process, but the strong disputant preference to use ODR does indicate their sense that it has utility in addressing their needs.
Much of our effort in Online Resolution (the online ADR spin-off of mediate.com) now focuses on “hybrid” ODR processes, where face-to-face meetings are combined with online tools to create a more efficient and effective overall process. For example, a mediator could meet face-to-face with two geographically separated disputants for an initial meeting, then move the discussion into an online environment for joint problem solving and agreement drafting, then re-convene face-to-face to get final buy-in. Building online dispute resolution environments in such a way that they can easily be integrated into and complement face-to-face ADR may make dispute resolution professionals more comfortable with ODR over time.
The benefits of ODR (such as cost, convenience, accessibility, cooling distance, asynchronous interaction, etc.) to disputants have been discussed in great length by other writers and I won’t go into a lengthy discussion of them in this short article. What I want to focus on is instead some of the possibilities ODR opens up to mediators and arbitrators, and how these capabilities might fundamentally affect the dispute resolution process.
Face-to-face dispute resolution must happen in “real time” as each side reacts immediately to new developments. A mediator can call a time out or use a caucus to break up this flow, but in joint meetings and discussions disputants must engage in a give-and-take where their responses are expected right away. In the lingo of computer-mediated communication, this is “synchronous” interaction.
Online parties, however, have the possibility of “asynchronous” interaction, where their response is not expected immediately. Disputants can connect to the ongoing discussion at different times, and even defer their response until after they’ve had time to consult with others, do some research, or just contemplate the situation.
As some online dispute resolution writers have observed, this ability to interact asynchronously can help parties to “be at their best” in a mediation. Instead of reacting emotionally to a new development or escalating a discussion out of surprise, parties can consider an issue and communicate in a considered way. They can still react emotionally, but they have the option of stepping back and reflecting before they respond.
This asynchronous communication can also be a valuable tool for mediators and facilitators. Just as disputants can react emotionally to new developments, neutrals can get caught up in the immediacy of a face-to-face session. Third parties can benefit from the cooling distance provided by asynchronous interaction, allowing them to pay greater attention to their own biases and perhaps enabling them to become more reflective practitioners.
Re-framing is an important part of any mediator’s skill set. Helping parties frame their communications in a way that the other side can best hear and understand is an essential component of moving a dispute toward resolution. However, in a face-to-face interaction, re-framing must be done in front of both parties. Once a name is called or an accusation leveled it can’t be pulled back, even if the mediator does manage to work with the disputant to re-frame the sentiment in a more productive way. Many mediators have had the experience of parties making progress and moving in a productive direction when one side makes an inopportune comment that derails the discussion and yanks parties back into name-calling.
Online, a mediator has a variety of options. If one party posts a comment that is very accusatory in tone, or violates ground rules about slinging insults, a mediator can discuss the sentiments expressed with the poster and help them to re-frame the posting before the other side has seen it. A mediator can even take the comment off of the live site and discuss it in caucus with the author before jointly posting a re-framed version. In the extreme case, a mediator can even set the system to require mediator approval of each posting between parties, allowing the mediator to re-frame each communication in a system along the lines of shuttle diplomacy.
These options allow the mediator to re-frame communications transparent to the intended recipient, so that the initial unproductive outburst and the resistance to re-framing can be dealt with behind the scenes and only the re-framed comment actually makes it to the listener.
While some mediators refuse to caucus with individual parties during mediation sessions, others rely on it quite heavily. The ability to talk about issues with one side in a confidential way can be extremely valuable in moving parties toward a resolution. Interests and motivations that would never be expressed in a joint discussion can come out in caucuses, allowing parties to be heard and enabling the mediator to get a better sense of the sub-issues in a dispute.
Caucusing can be a crude tool in face-to-face mediation sessions, however. The mediator usually has to call the joint discussion to a stop, and then has to decide which of the parties should caucus first. The other party is then sent into the hallway to wait while the mediator caucuses. Then, usually to preserve the sense of even-handedness, the parties switch and the mediator caucuses with the other side. Then, after a relatively short amount of time (because the mediator is cognizant of the other party sitting outside the meeting room doing nothing) the parties are re-convened. Hopefully the delay hasn’t derailed the progress that was being made before the caucus; often, mediators only call caucuses when the discussions hit a stalemate because they don’t want to disrupt productive discussions.
Online, caucusing can be much more flexible. In Online Resolution’s “Resolution Room” environment, mediators can caucus with parties at the same time the joint discussion is going on. In the joint discussion, postings reach all participants, but in caucus discussions the mediator interacts with one side or the other. This allows the mediator to caucus through the entire mediation, even when the discussion is progressing well. It also prevents the other side from having to wait during caucusing, or to wonder what secrets are being passed while they are out of the room.
It should be noted that maintaining three different concurrent discussions (joint, caucus A, and caucus B) can be a little confusing at times. However, this kind of mediator multitasking can be very effective, and it’s not unlike having several documents open in a word processor. Managing these different threads (and making sure communications go in the right places) is one of the new skills ODR professionals need to master.
Voice-based communication has many benefits, in terms of ease of use, speed, and inflection. Many ODR platforms are moving toward the integration of voice communication to capture some of these benefits. However, text-based communication, which provides the foundation for many current ODR platforms, also has benefits that shouldn’t be overlooked. Aside from encouraging reflection and contributing to the “cooling distance” of ODR environments, text-based communication also makes the drafting of documents much easier. As many mediators have found, sitting around a table with a pen and a pad can be a difficult way to draft a document. People speak very differently than they write, so while some parties can express verbally what they want it can be very difficult to translate those preferences into text acceptable to both parties.
Text-based communication has the advantage that people are forced to translate their preferences into text from the beginning of the process. When the time comes to draft an agreement, the mediator can lift actual language from past postings to ensure that the parties will approve of the phrasing. It also helps people be more specific in their comments, as it is difficult to finish other people’s sentences online or to rely on generic language. It is harder to be reticent online, as silence in text connotes absence more than being sullen or passive-aggressive, so there may be more of an incentive for parties to express their feelings, interests, or desires.
An extension of text-based communication is that postings in an online context are usually archived, either just for the length of the mediation or even beyond the end of the mediation. If parties prefer not to have a record of their discussions after the close of their session, the file can be deleted and no record will exist. If parties prefer to have the text of the session available to re-visit, they can save all the text of their discussions into a file that can be re-opened at a future date.
Mediators can re-visit archived communications to help clarify issues, or to remind people of statements they had made earlier in the discussion. In a face-to-face session, once a party says something, it’s gone. Later a mediator can remind a party of a statement that had been made earlier in the session and the party can deny it, portray it in a different context, or reinterpret its meaning. Each side can remember earlier conversations very differently, and unless the discussions were tape recorded (which creates a very different tone for the mediation) there is no right or wrong recollection.
Archived communications allow the mediator (and the parties, if they retain access to the archive) to actually copy out the words from a party’s posting and remind them of the sentiment or preference expressed. It is as if the mediator had an instant recording of everything that had been said in a mediation session ready to play back at a moment’s notice, but without the self-consciousness of a tape recorder.
It is important to note that archived communications can be a problem as well, especially if insults and accusations from the beginning of a session are repeatedly revisited and resuscitated by the parties, making them unable to make progress toward resolution. In some cases, the fact that vocalized communications are gone after they’re said can be an asset to the mediator, as damaging or insulting statements are forgotten as the session progresses.
Many mediators have memorized their opening statements so that they don’t forget basic ground rules and so all of the necessary disclosures about their role in the mediation process are made clear to the participants up front. However, mediators can’t easily memorize whole blocks of discussions from the middle of mediations, or re-use well-phrased questions or detailed re-framing techniques between sessions.
Online mediators can copy out particular passages from discussions with parties that they think do a particularly good job moving the parties toward resolution or clarifying key issues. Once they take out information specific to the parties, those passages can be used in future mediations. They can even share the language with fellow mediators to get constructive criticism, or let others use the language where they find it helpful.
In our Resolution Room environment we have a folder accessible only to the mediators with resources useful to them in providing effective dispute resolution services. There is suggested language for different stages of the mediation process developed by expert dispute resolution practitioners. Mediators can also consult training material or suggested steps for parties to move through in an attempt to reach resolution, all in the middle of their ADR process. In a face-to-face session, consulting materials such as these might delay the process or make parties question the experience of their neutral. Online access to these resources, especially effective language worked out ahead of time, can aid the work of the mediator transparent to the disputants.
Most of the mediation programs I have worked with use a variation on the co-mediation model. Having two mediators can be an effective way to deal with many different ADR challenges, especially when inexperienced mediators are just starting out and they don’t have total confidence in their abilities to move parties toward resolution effectively. Such mentoring relationships are a good way to expose new mediators to various ADR techniques and to get them sure of their footing in the mediator role.
However, mentoring can only go so far in a face-to-face context. Experienced co-mediators are tempted to take over when the process gets complicated, and inexperienced mediators are more likely to rely on their expert co-mediators in difficult situations. As an alternative, the experienced mediator can be a silent observer in the back of the room, but the silent watcher can affect the ways that disputants interact with each other.
Monitoring mediator performance over time is also very difficult. Mediators that go through their training phase and continue working solo often get very little ongoing supervision, and it is hard for program administrators to monitor both the new trainees and also keep tabs on the more experienced panelists.
Online dispute resolution environments allow observers and mentors to be in a room monitoring the goings on, and even communicating with the mediator in a caucus closed to the parties, without the parties feeling uneasy because of the presence of a stranger. Of course the monitoring role must be cleared with the parties in advance of the session, so that they know that there is the possibility of a program representative visiting the room at some point, but once that approval is given the mentor (participating in the Resolution Room as an observer, able to see what’s going on but not able to participate in any way) does not affect the dynamics of the process as much as a live body in the back of the room might.
Ongoing Consensus Evaluation
Consensus Building processes often involve multiple parties discussing a wide variety of issues. Facilitators of these processes frequently have many balls to juggle, as each party is at a different stage in accepting or rejecting proposals at hand. Often facilitators will evaluate the consensus of a group, going around the table and getting a sense of where people stand on an issue. This is a time consuming process that must be done judiciously, as parties can become frustrated with multiple consensus evaluations when they don’t perceive that individuals are making any progress toward agreement. In addition, these consensus evaluations are frequently public, meaning that individuals must make open pronouncements of their positions even though they may be wrestling with different and conflicting desires. Once a statement is made in public many individuals feel the need to defend the position they’ve taken instead of continuing to consider alternatives.
Online consensus evaluation can be done in an ongoing way. In our Resolution Room environment, mediators and facilitators can poll participants to determine the extent to which they agree with certain statements, or to express what they see as the key obstacles to agreement. These results can be confidential, viewed only by the facilitator, or public as to totals (who voted for what, or what the “average” agreement number is) while keeping the identities of individual voters confidential.
This information can be very helpful to the mediators and facilitators, giving them a sense of how close or far the group as a whole may be to agreement. Parties are not forced to defend their opinions in public, which allows them to be more honest and less defensive.
Blind Negotiation Processes
Some ODR companies have emerged to offer a single kind of dispute resolution process: a blind bidding process, where an automated algorithm evaluates bids from each party and if the two bids are within a prescribed range (say 30%) then the case settles for the median. If the cases are not within the prescribed amount, then the bids are destroyed and neither side knows what the other proposed. Both parties are fully informed as to the way the process works before it begins, and they agree to abide by the outcome if one is reached.
Blind bidding processes work even better on the Internet than they do face-to face. In a courtroom or mediation, the mediator can give information away by their facial expressions, or even a meaningful sigh. On the Internet, once the process is automated in a software program, there is no opportunity for that type of secondary communication. Parties can submit bids and get outcomes without tipping their hand at all; if no resolution is reached, each side has no more information than they had before the process began.
In many mediations I have administered the process ends up with the “slicing of the salami” where one side and then the other make monetary bids in an attempt to agree on an acceptable number. Online a blind bidding tool could be used when the parties reach that particular stage in order to more efficiently find the amount in question, without the aching back-and-forth that characterizes most “salami slicing” procedures. In fact, some mediations break down as the fragile agreement that has been built through the session is broken by the strain of the back-and-forth monetary negotiation.
In an online environment, a wide variety of these blind negotiation tools, separate and apart from the mediator, can be brought in to a mediation session to help parties resolve discrete issues efficiently. The software algorithm can be described in detail up front so that the parties have no surprises, and purely distributive issues (such as monetary settlements) can be settled through the software while the mediator focuses instead on the relationship-based issues.
It is important to note that mediators who prefer not to use these capabilities (for instance, caucusing, approving postings, archiving communications, or even interacting asynchronously) can also remove one or more of these functionalities from their online meeting space. Each online process can be completely customized by the mediator to include or exclude the elements they choose. All the more reason why dispute resolution professionals must become more familiar with these capabilities so that they can decide how they want to practice online and how best to meet the particular needs of their parties. Over time, mediators will probably come to mix-and-match various online techniques to best address the challenges of each individual dispute.
Based on my conversations around the country, most ADR professionals can easily envision how audio and video-conferencing will allow for the delivery of effective dispute resolution services over the Internet, mostly by replicating face-to-face ADR processes. However, there are advantages to online dispute resolution service delivery and computer mediated communication that cannot be integrated into purely synchronous, face-to-face ADR service delivery. We are just beginning to use these techniques, but mediators should get trained in the new tools available online and try them out to see what benefits they can offer. Effective use of these tools is important, because they will help us better meet the needs of the disputants who come to us for help.
Special thanks to Elisa Sneirson for her assistance with this articleThe purpose of this article is to recount some of mediation's past, consider its current state, and offer a few...By James Melamed, J.D.