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ODR- Online Dispute Resolution: Fact or Fiction

The Gavel, Orange County Trial Lawyers Association, Volume 4, Number 2, Spring 2001

Does anyone trust that which they cannot touch, taste, hear, sense or smell? Can anyone really believe that meaningful negotiations may be conducted in an online world? Is there a benefit to Online ADR? These are lust some of the questions currently being pondered by mediators and the user of their services worldwide.

To be sure, there are online services that offer blind negotiation services. You enter three numbers and so does the other side and the computer pronounces a settlement if any two of the numbers are within a fixed percentage, say 20% of one another. This is not mediation; it is a kind of informed lottery where the clients give consent based on the belief that they or their representatives will peg the litigation settlement value. It works, in low value cases where there are no real interest-based issues Ä just a question of $$.

Then there are the varieties of services that "mediate" online disputes. That is, disputes that arise in an online transaction, between parties who have never met. This is a form of "ODR," and it is important because in these Internet buy-sell deals, the parties generally have not and will never meet, and it would be impractical to think it could be any other way! Imagine mediating a $250 E-Bay dispute in person. No, there must be a simple, inexpensive, method for the disputants to submit the issue to an arbitrator, at a low cost, online, and be bound by the result.

This process also works well for small repetitive disputes, such as homeowner vs.
homeowner's association disagreements and simple personal injury cases. This same format provides easy adjudication with little face-to-face hostility.

A hybrid works quite well. In this process, tradition ADR is mixed with online communication and actual negotiation processed through a neutral and then filtered to the other side. It may be beneficial to meet face to face for an initial joint and separate caucus that includes "rule setting" and a written agreement confirming that ALL online discussions are fully protected by the mediation privilege and are inadmissible for all purposes. Then the negotiations move online for problem solving, floating of ideas, and value negotiations. Once completed and an agreement reached, drafting of settlement agreements can occur fully online, with disagreements submitted for assisted resolution (not drafting as that should not be the role of the mediator).

The Benefit of Non Real Time Negotiation

As a mediator, the client is the deal. The parties have retained the neutral to get closure. In real time, the objective is to leave the mediation with a signed agreement. Sometimes, the world does not work that way. When this happens, the parties are left with suggestions, homework, neutral suggested numbers and terms, or simply failure.

By adding ODR, the disputing parties may connect to the issues at different times, ponder and then provide a thoughtful response to the mediator. The mediator may reflect and reframe, and then turn the concept into- a proposal for settlement of all or part of the dispute. This delay provides an opportunity to review and reflect, and consider win-win solutions. Really; there is thus created a cooling off period for all parties, and for the mediator. Calmer heads may then prevail.

Time Out and Reexamination

Using ODR, the mediator may set ground rules for communicating interests and concerns. A mediator may ask the parties to address non-monetary issues and rate them in order of priority. A party may vent online to the mediator, through counsel generally, without the risk that this "venting" will be displayed and transmitted to the other side. In an open caucus, most mediators have experienced a party caught up in the moment, who suddenly blurts out an insult and changes the course of the mediation. In cyber mediation, the mediator is better able to assist in redirection and reframing of these thoughts. This tool is especially helpful when the parties are not represented. Since all communication is through the mediator, online, frustrations may be expressed without fear of reprisal and the mediator can assist the party in reevaluating the appropriateness of the sentiments.

Dueling Caucusing

Some mediators avoid the open caucus, while some avoid the private session. In ODR both may occur, and they may occur at the same time! Think about it. Mediator speaks with all parties. Mediator leaves one party with homework or just to sit around while the mediator caucuses with the other party. Then mediator switches the caucuses. Back and forth, etc.

In ODR the mediator is able to multi-task. There are three folders open at once. One dialogue with party A, one with party B and one with A&B together. They all go on at the same time.

And let us not forget that the mediator can and should archive all the communications
Ä thus providing a record to clear up any miscommunication that may occur.

This is a real-time simultaneous online mediation. It is different froth the earlier described situation where the mediator works with the sides separately and over a longer span of time.

Text vs. Face to Face - A Gain and a Loss

In live mediation, the voice is combined with gestures to produce communication. A mediator is a watcher who looks for nonassertive conduct and inflections in an effort to sense and direct the movement of the parties. In ODR, there is the written text-based communication only (that is until we add cameras and real-time viewing). The advantage of text is the requirement that the writer examine his/her thoughts and put them into meaningful written words. A risk is that a harsh sounding phrase is often more so when put to cyber paper.

Textual negotiation does make drafting agreements much easier. Once the deal is in place, a joint e-caucus may be used and documents are proposed, edited and reedited in a virtual simultaneous transaction.

Confidential Surveys

When conducting multi-party and multi-issue ODR, the neutral is able to poll different people on different issues and do so on a real-time ongoing basis. For example, the mediator may send an e-question to several participants, separately but concurrently. In this manner the mediator is able to evaluate multiple responses in a much shorter time than in there were a series of face-to-face discussions.

Conclusion

ODR is at its infancy. Dispute resolution professionals are experimenting with ways to use it most efficiently. I would love to receive your input on your experiences Ä excerpts of which I will share in a follow-up article. Simply e-mail me at apolsky@jams-adr.com.





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