Online Mediation For In-Person Mediators

ODR (Online Dispute Resolution) has been increasing its profile of late. Note the following:-

UK’s forthcoming Online Solutions Court, (see Chapter 6 at http://tinyurl.com/gpm57bl) and British Columbia’s Civil Resolution Tribunal;
the world’s first law on Online Dispute Resolution (ODR), (http://tinyurl.com/qytyljd - as amended by http://tinyurl.com/zec77cy - as well as http://tinyurl.com/lqyfqh6) requiring most European e-commerce and service provision websites to promote ODR;
the Modria/HiiL collaboration on Rechtwijzer and other projects from these bodies;
the Council of Europe’s call on its 47 member countries to implement ODR,
UNICITRAL’s encouragement of ODR through its Technical Note on ODR

So let me offer some key takeaways on the significance of ODR to mediators:-

1. The Business Case for ODR

Conducting mediations wholly online provides the mediator with an opportunity to significantly extend the marketplace. A bigger market should lead to increased casework especially at a time when those mediators who offer to work online are in the minority. That extension is not simply to the geographically wider market but also to the large numbers of low value disputes that, were it not for the reduction of time and cost offered by online mediation, as well as the automating of much of the process (see below), might not otherwise justify the mediator’s fee. With certain types of ODR, however, the mediator can lower his fixed fee for the case yet, thanks to the reduction in his time resulting from the use of ODR, still earn at the same rate for the time spent. In addition, ODR enables him to run more than one mediation at a time.

The business case for developing an online mediation practice is, therefore, strong.

2. ODR is More Than Skype

For many mediators, ODR is simply using online technology as the medium for real time discussion, e.g. Skype or Zoom, or exchanging emails for asynchronous discussion. Whilst that is a key element of ODR, ODR has moved on.

Take a look at the above Venn diagram. Mediators venturing into ODR mainly use ODR v1.0.There are some systems currently available offering ODR v2.0 that can help the parties to better analyse and frame their cases .For example, a well designed case entry process in which a logic tree of questions is provided helps the parties to better frame their case in a structured way rather than giving them the ‘blank sheet’. In this way the mediator can be up to speed in understanding the positions of the party in less of his personal time than otherwise might be the case.

As to ODR3.0 , where the software plays its own facilitative role, this is mainly in development. However, blind bidding for disputes primarily limited to disputes that are to be settled by agreement over the amount of a payment has been around for a number of years as offered by Cybersettle. Blind bidding is where the parties enter bids and counter bids into the system which are not revealed to the other party. However, as fresh bids are entered, if the most recent bids come within a pre-agreed proximity to each other, then the system, in accordance with the agreement to use the service, announces a binding settlement at the mid point. Blind bidding has not as yet taken off but I believe its day is yet to come. Shortly after Cybersettle first opened for business, a number of other blind bidding systems were developed (e-Settle, InterSettle and WeCanSettle, which I co-founded back in 2000) but which all closed after ‘cease and desist’ letters were sent following the grant of a world wide patent to Cybersettle. Cybersettle’s website is now not currently live and , before it went down, most of the blind bidding service content had been removed. The software has now been licensed out to a mediator.

The blind bidding story is a good example of the two edged sword of the patent system which, whilst encouraging development, can also inhibit further development by others. Whilst I am not a patent lawyer, it may be that these events will now open up more blind bidding services. I always felt that the problem with Cybersettle is that it required participants to make three bids at the outset rather as with other systems that allow bids to be made at any time.

There is also work being done in applying game theory to help litigants prioritise objectives as well as systems that will offer predictive analytics. So beware taking too narrow a view of ODR. Development is ongoing and is to be monitored and understood to identify opportunities. Just because your competitors are ignoring it, is no reason for you to do so. Quite the reverse if you want a marketing advantage.

3. You Can Use Online Mediation Within In-Person Mediation

Online mediation should not be looked at as an alternative to mediations conducted in person but rather as a set of facilities that add value to in–person mediations. Consider the following:-

* Prior to a mediation meeting, the mediator's understanding of the matter is usually limited to a statement in writing by the parties and possibly, but not always, a telephone conversation. Much of the initial time in the first 1:1 meetings is taken up with the mediator gaining a more in depth understanding of the facts and what the dispute means to the parties. He may often have to try to assist the parties in controlling any negative emotions provoked by the dispute and the other party. He will also need to help the parties understand fully, and be confident of, the impartial nature of his role. This can take up much time, certainly often the whole of the first private meetings. However, by using an online mediation platform, on which the parties and the mediator can post messages in their own time for a more reflective discussion, the mediator will be able to significantly improve his understanding of the matter, and help the parties address the mediation in a more positive frame of mind, before the date of the meeting. Similarly a real time session could take place via web conferencing if that is preferred. Thus, when the ‘in person’ part of the mediation commences, the mediator will be able to hit the ground running and thus improve the prospects of a successful solution being found before the time allowed for the meetings expires. This will be particularly important for mediations scheduled over a short period of time say one or two hours.

* Physical meetings have to be arranged to a date and time convenient for all parties. There will inevitably be an intervening delay, which may even lengthen should the meeting need to be re-arranged due to illness etc. Since use of an online mediation platform can be undertaken by each participant in their own time, this means that efforts to try to resolve the dispute can commence almost immediately the mediator has been appointed. This may help 'take the heat' out of a dispute pending the in person mediation meeting. There also remains the possibility that this initial online mediation may help resolve the dispute prior to the meeting.

* If the in person mediation runs out of time and does not result in an immediate resolution of the dispute, further attempts to resolve the matter can continue to take place online, thus improving overall the prospects of success.

* The online file can be accessed during the in person mediation, to log proposals and clarify in writing any significant statements. In this way, while the mediator is in private meeting with one party, the other party could be reviewing the observations of the mediator, which may include some suggestions for resolution, as well as any significant statements and/or could be putting in writing any thoughts, or clarifying any information, as requested by the mediator.

* If use has been made of the online file during the pre-mediation phase prior to the meetings, the mediator can access the file to remind himself of relevant issues and facts as explained to him in posted messages. For example, he could be reading the posted discussions from a private online session with one party whilst in private meeting with that person, to identify any shift in position, or indeed whilst in meeting with the other party.

* It may be possible to set aside an area of the online platform for the anonymised posting of suggested solutions. When one party makes a suggestion, the other party's view of the suggestion is often partly coloured by knowledge of who made the suggestion. Anonymising the proposal helps focus attention on the proposal itself. For obvious reasons this will only be of value when there are more than two participants ('if it wasn't me then it must have been you'), but that can include lawyers and other representatives.

You can view a mock shareholder mediation conducted online (using Zoom.us) by following the link at http://www.boardroomresolve.com/