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I began mediating in 1983. I mediated my first cases with the assistance of a typewriter. I nearly had a coronary every time parties or their attorneys wanted to make changes to what I thought was their final agreement.
Back in these good old days, I developed a routine of walking to the mailbox every evening at 5 pm to send the day’s correspondence and draft agreements. I did not want there to be any unnecessary delay in my diligent communications with clients and counsel. I would assume that my impressive mailings would be received three or four days later. I would time my phones calls for 5-7 days after a meeting to also allow folks to review these documents. I was also always confused as to what message to leave on a home answering machine. I scheduled multiple session mediations two weeks apart to allow for this “turning around” of the paper, consideration and strategic phone calls. This was back in the day of pink message slips. They used to rule my life.
Game Changer – The Word Processor
Enter the word processor. The word processor should properly be recognized as a game changer for mediators and mediation. As the printing press is to books, the word processor is to mediation. The word processor liberated mediators and mediation to be at our best. No more coronaries because parties and their attorneys wanted to endlessly change their mediated agreement. Now it was, “service with a smile.” “I can do that!” “No problem!” By our flexibility and agreeability, we were now able to “walk the talk” of mediation. Our deliverables, correspondence and endless agreement drafts, came to look better and better with succeeding generations of WordPerfect or Word and ever-improving HP laser printers. Does HP still make printers?
Mediation as Physical Ritual
My and others’ early expectation about mediation was that, “the magic takes place in the mediation room.” Assuming this, many mediators invested and continue to invest in carefully considered and structured mediation centers, geared to most capably support participant and attorney agreeability. This impacts the size and shape of the meeting rooms we create, their colors, the shape and size of tables, chairs,, beverage service, pads of paper, pens, art on the wall, the height and tilt of the blinds, you name it. No detail is too small to pay attention to. I would measure the angle of the chairs relative to my mediator chair with a protractor. It was critical that each water glass had the exact same amount of water lest one side become convinced and have “clear proof” that I favored the other.
Now in Retrospect
Now, in retrospect, I wonder how much of the magic really “takes place in the mediation room.” Or better stated, I have come to ask, “exactly what magic takes place in the mediation room and exactly what magic takes place elsewhere. And in other ways?”
For starters, I came to recognize that, while you could accomplish a number of things in a joint session, when the “going gets tough,” it seems that separate caucuses, or at least a break in the discussions, was most helpful. “People can only move so far so fast.” When you are asking them to “move,” and “move far,” this simply would not happen in a satisfying and durable way in a single mediation session. One might grind out a distributive (money) case at the end of a contentious day of “crisis mediation” under the threat of an impending court deadline, but true and durable movement in complex cases and continuing relationship “integrative cases” just did not happen in a single physical meeting, certainly not in exclusively joint sessions “under the gaze of the other side.”
The Inconvenience Factor
Also, in retrospect, and understanding that there are a good many situations where it really does make sense for people to physically meet (think continuing relationship), I do also wonder exactly how attractive it is for a participant to take part in a physical mediation. Just how satisfying is it to be in what is always a too small room “with the enemy.” I am not saying that physically meeting is a bad thing, only that I do not know that many mediation participants necessarily enjoy this aspect of the processes. And I believe that this is especially true when they need to take off work, pay for child care, drive through traffic, fight for parking, only to wait in a waiting room for too long before having to live through the tensions of a joint session, before being “out-caucused” at least half of the time, giving them plenty of time to think about how costly all of this mediation is rapidly becoming.
I first utilized email in 1988. I was then Executive Director of the Academy of Family Mediators (AFM). This was the “hey day” of divorce mediation. In my six years at AFM, our membership went from 800 to 3,200, in substantial part because of the utilization of ConflictNet begun by John Helie. I was having a terrible time keeping up with my pink slip phone message from AFM Board Members. I wanted to do bunches of things to move AFM forward, but I was pulling my (then existent) hair out trying to get proper authority to do things. I hated ringing phones demanding my attention at all of the worst times. I hated being chewed out for not consulting someone and for constantly needing to get everyone up to speed on everything. There had to be a better way.
Initially, that better way was screeching 300 baud modems and training the AFM Board Members to use email, attachments and bulletin-boards. We had one protocol: that everyone would check their email at least daily. Overnight, there were no more ringing phones. There were no more pink phone message slips. I could now communicate to one or more or all board members conveniently and simultaneously. Others could respond to both me and the others. We had online dialogues that were archived so that later joiners could get fully up to speed on their own time. And I also noticed that more and more of our members were also joining in online and how much added valued all of us were getting from such a respectful (think silent) and effective information sharing system.
“This Changes Everything”
I remember sitting looking at a color monitor for the first time and saying, “this changes everything.” I instantly had visions of using colored fonts, bold, italics and emoticons to more capably ply my mediation trade. And then one day I saw a picture online. OMG (this acronym did not exist at the time), so I said, “Oh my god, this changes everything!” I thought about putting parent’s pictures of their children on their agreement. I thought about mediator marketing. I thought about public education, only to be interrupted by “hearing” the Internet and soon thereafter seeing video on the Internet. To this day, I continue muttering to myself “this changes everything” numerous times as I considered broadband, wireless, smartphones, skype, free conference calling, cloud-based case management, and online meeting rooms and resources.
In fact, things have changed so much over the past two decades, especially over the last 5 years, that I am convinced most of us are rather dizzy from the accelerating evolution of communication technologies. Our communications used to be hard copy and “get there” 3 of 4 days later. Today, it is more like 3-4 seconds. We used to call people at “places,” now all communication is “personal.” Today, for many (think everyone under 35 for sure), we use a variety of communicational technologies and barely distinguish them from our face-to-face experiences. One serves the other. There is nothing that supports a quality face-to-face relationship as much as also having great online communications. And I offer that there is nothing that makes an online relationship work quite like a physical get together. Oh life! So many paradoxes! Why can’t things be “either/or” anymore?
And so, whereas we used to stuff endless disks of the latest Word or WordPerfect software into our floppy drive, we now do not even think about updates because they are now provided “from the cloud” (think god – it really is a miracle). I now find myself saying things to clients like this (by text): “Hey, I just emailed you a new draft w/ track changes on. Pls review, edit, flip back to me then give me a ring so we can do a skype .” I just felt my 8th grade English teacher turn in her grave.
Speaking of graves, let me take this opportunity to encourage all readers to get “all your best stuff” up online, if only for your digital legacy. While I hesitate to break the news, your digital legacy will far outlive you! It is a rather delicate conversation when I tell Mediate.com authors that they will see an uptick in their readership after they die. I can’t fully explain that, but I have the web stats to prove it. I guess we are not fully appreciated until we are “gone.”
So, Where Are We? The Scalability of Mediation
For starters, mediation is everywhere, if only because there are no better alternatives. It does make commonsense that, if folks are not able to figure things out directly, it is better to help them to do that, rather than having a dispute go unresolved or result in costly and inaccessible litigation (if that is even an option).
One aspect of mediation that has not received enough attention is the “scalability” of mediation. In short, no matter how much mediation we wish we could offer in a situation, we have the ability in the mediation industry to offer “some measure” of mediation, even if we can not offer the “Rolls Royce Mediation” services we wish we could offer. This ability to (affordably) offer “some measure of mediation is central to the future of mediation and online mediation.
Let me create a couple of contrasts with the two other “pillars” of dispute resolution in our global society: “Due Process” and Arbitration. My main point here is that one can “cut corners” in offering mediation and “offer as much as can be afforded,” whereas this really does not hold true for due process and arbitration. For example, what puts the “due” in Due Process is that it is a perfectly predictable and comprehensive opportunity to both make one’s case and also to appeal one’s case, usually at least twice. In the case of Arbitration, knowing that arbitration is a one-time shot, with no substantive rights of appeal, the tendency is to not cut corners, but, rather, the opposite. I have heard it said that, “arbitration is the new litigation.” Arbitration has become ever more contentious and complex in substantial part because, by contract or statute, litigation has been precluded. Having taken consumer and employment litigation rights, arbitration is commonly the only “day in court” that consumers and employees now have.
Against this ADR backdrop, mediation is unique. With mediation, one can provide or participate in as much mediation as can be afforded (or tolerated). We might wish for 10 hours of mediation, but only have one hour that can be afforded. “So be it,” we say. “Some is better than none.” We work with what we have. We do the best we can. Participants are often fortunate, given the general inaccessibility of justice, to have some measure of mediation opportunity to figure things out.
Enter Online Mediation
It is against this backdrop, of technologic advances and the growth and diversification of a scalable mediation industry (we provide whatever measure of mediation you and we can afford), that online dispute resolution and online mediation now find themselves ready to take center stage. Please again remember that online mediation does not preclude face-to-face (FTF) mediation, but is, in fact, often the perfect compliment to FTF mediation. Please also understand that, for many disputants, the concept and actuality of meeting in a small room with “the enemy” is not necessarily an attractive proposition, and may well not even be an option given the costs, time and other dislocations of having to get physically together to resolve a matter.
The growth of online mediation is primarily based upon such commonsense concepts as “it is faster, cheaper, more affordable, more convenient, safer, and at least possible.” Just as there are “access to justice” issues, there are “access to mediation” issues. Some mediation is better than none. If we have limited time and funds to support mediation, does it really make sense to force people to take off work, meet for an hour 9-5 on weekdays, in “brick and mortar” facilities, where time and process pressures themselves often contribute to, rather than help resolve, the crises at hand?
Might it make sense to compliment what we can do FTF with most capably online capacity? In modern parlance, I think the phrase is “Duh!” And so, I offer that it is a very short time before we will be having “a (virtual) space for every case.” Why wouldn’t we when the cost is remarkably low, the benefits potentially enormous, and, most critically, the marketplace is demanding this.
The growth of online mediation is not generally being driven by mediation professionals, but, rather, by the dispute resolution marketplace. There is, of course, a generational component here. Disputants that are under the age of 35 are literally insulted that they cannot make progress in resolving their disputes online. And in an expanding number of areas, for example elder mediation and online commercial mediation, getting physically together just does not make sense or may be practically impossible. It is rather presumptive to tell people who have done an online commercial transaction that they somehow now need to resolve their online dispute in a face-to-face process. Something does not compute there.
And so, it is against this background that I want to ask the question, just how do we do online mediation? Is it the same as FTF mediation? How is online mediation different?
My experience with online mediation thus far indicates two primary differences between online and FTF mediation:
1) the mediator and participants have somewhat less “acuity” online (to notice all of the non-verbals, etc.); andOn the acuity issue, I will note that this is changing and improving. With faster transmission speeds, better software and improved devices, the online environment is becoming ever more “real,” and for certain purposes, this is helpful. Still, there is the issue of “what do we do online when the going gets tough,” and how do we deal with the risk of disengagement (just a click away).
2) participants online may be leas “committed” to the mediation (and are no more than a mouse-click from disengagement).
Finally, some good news! I think the answer to the risk of disengagement issue is our good old friend “shuttle diplomacy.” For those who can remember, think of Henry Kissinger as shuttle diplomat. I like to think of it as “Emissary Mediation,” and my suggestion is that the antidote for participant’s ease of disengagement online is that we do our best to not risk this by making a “conservative” decision (not a political, but a process decision) to not push the joint online environment too far. Very specifically, I find that the one thing that is much harder to do online than FTF is “simultaneous problem solving” with “everyone in the room.” Between the limited acuity and the ease of disengagement, what is far safer and I believe in fact superior is “sequential problem solving” through “emissary mediation.”
Bringing It All Together – SYNC, UN-SYNC, RE-SYNC
If I try to weave all of this together, and generally assume that “people are still people” with the same psychological and substantive needs and challenges, I have come to the conclusion that a new paradigm for online mediation might be along these lines:
Phase One – SYNC
Toward the beginning of a mediation, be that FTF or online, my experience is that our first challenges as mediator are to maximally “sync” with the participants and their attorneys. This might include such aspects as:
Phase Two: UN-SYNC
However, if our participants are truly in conflict, then the overwhelming odds are that mediation progress will come to slow, if not come to a complete standstill. We know this as mediators. We prepare for such “impasse” with “impasse breaking techniques,” perhaps the most common and powerful of which is breaking into caucus discussions.
When we hit the “knot” of the dispute, we are looking for new answers and, with these not being immediately available, we “slow things down” and have separate, private caucus discussions with each side. While we maintain a synchronous relationship with each side in their respective caucus discussions, we “force” asynchronous communication between the parties. When we caucus, we really do not want to immediately share what each party is saying with the other party as we want to negotiate with each what will next most helpfully be shared.
In other words, we sequentially exercise our professional discretion as to what asynchronous communications are shared with “the other side.” It is this artful communicational choreography, commonly including 3-5 indirect exchanges, that tends to “get the job done.” In other words, it is our “un-syncing” of the discussion, disengaging the parties from real-time synchronous communication with one another, that gives us the time and space to negotiate next moves to create the greatest chance of agreement.
I offer that it is the same online, only more so. Because of the somewhat limited acuity online and participants’ ease of disengagement, I suggest that it is reasonable online to be even more assumptive about the practical need to “un-sync” the parties’ discussion and to engage in “emissary mediation.” Many of us have already had this experience with “phone mediation.” Yes, you can make a certain measure of joint progress in a mediation with a phone conference call, but there comes a time where it makes abundant sense to break into a series of respective caucus conversations, only to later re-engage the joint dialogue.
Phase Three: RE-SYNC
Having engaged in artful emissary mediation efforts with the respective parties, it is also clear to me that there comes a time in the online mediation where it makes sense to “re-sync” with the parties in joint dialogue. This might most commonly be done either when the mediator has a sense that agreement is at hand or that the parties have made such substantial progress that the bridging of final differences might reasonably take place during a final joint dialogue. “Re-syncing” might also take the form of simply bringing everyone up to speed on the relative progress of the overall discussions, or even to share an impression that “this may simply not be solvable” (which might well be an artful technique to induce movement as part of additional emissary mediation discussions).
If it seems that substantial progress has been made, or is seemingly available, the mediator may use a “re-synced” joint discussion to introduce a “mediator’s proposal” (what I call a “reference point), to identify if simultaneous final movement might be induced. Such a possibility, for me, would begin something like, “Let me ask you, if the others are willing to agree to the following, would you?” I ask for those answers separately so as to not disadvantage the first one to answer. Critically, it would be in joint “re-synced” discussions that I would want to confirm any “final agreement” and also ask the integrative question, “Does anyone have any additional ideas about how we can make this resolution even better that you would work for you and that you believe may well also work for the others?”
Completing the Model
Now, to the extent that any of this makes sense to the reader and is possibly of benefit, let me introduce two additional issues:
1. What do we do online even before we meet the participants and begin their mediation to elevate the likelihood of them retaining us and of our mediation efforts being successful; andIn terms of the “before” issues, it is not over-stating things these days to say that “our parties meet us online.” Whereas possible parties used to give our office a call and we would send out introductory materials by (snail) mail, participants now gain a deep understanding about who we are and the services we offer from our web sites. They also compare our web site offerings with other candidate mediation providers, and we know that we want to favorably compare. In making a mediator selection decision, participants value rich information, the more the better. It is for this reason that more and more mediators are posting short introductory videos at their websites. If a “picture tells a thousand words,” a video tells far more. I am quite convinced that a posted video will become the de-facto qualification criterion of the future. Whatever the resume or vita says, mediation participants mostly want “someone they can work with.”
2. What do we do online following a mediation to support successful implementation of the mediated agreement (if this has been accomplished) and to later provide additional mediation assistance?
Further, our websites (our electronic storefront and office) also allow us to provide service in the form of education and even substantive solutions that have worked for others. The great thing about online education is that it can take place “without the taxi meter running,” even while we are asleep or, better, out on a bike ride, hike or at the tennis court or golf course. There is no limit to the valuable information we can provide to participants to elevate their capacity to mediate and to reach ever more informed decisions.
Finally, if we have performed well in our new online mediation context, we will certainly want to stay in touch with those who have experienced our brilliance to assist them again or to offer the possibility that we might also be able to so capably assist others. An ongoing short quarterly newsletter, re-stimulating their recollection of our wisdom, good looks, perseverance and Internet savvy may be just the thing for growing our mediation practice in this new age of online dispute resolution.
Mediation as a Choreography of Communication
In sum, mediation has become less a discrete physical event and more a “choreography of communication,” both online and face-to-face. The “scalability of mediation,” our ability to offer “some measure of mediation,” even if not “perfect mediation,” is a distinct and unique “competitive advantage” as the mediation industry moves into our online future. We as a field would be remiss to not seize upon new online mediation possibilities. The online environment is now the air we breathe and the ocean we swim in. As a field, we are wise to embrace, not fight, online mediation potentials. People are still people. Mediators are still mediators. It is just that we now have a myriad of communicational opportunities that genuinely allow our cherished mediation field to realize its full potential.
Jim Melamed co-founded Mediate.com in 1996 and has served as CEO of Mediate.com ever since. Mediate.com received the American Bar Association's 2010 Institutional Problem Solver Award.
Before Mediate.com, Jim founded The Mediation Center in Eugene, Oregon in 1983 and served as Executive Director of the Academy of Family Mediators (AFM) from 1987 to 1993. Jim was also the first President and Executive Director of the Oregon Mediation Association (1985-86).
Jim has received the following awards:
Jim's undergraduate degree is in in psychology from Stanford University and his law degree is from the University of Oregon.
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