eMediation


by Noam Ebner

This chapter is from "Online Dispute Resolution Theory and Practice," Mohamed Abdel Wahab, Ethan Katsh & Daniel Rainey ( Eds.), published, sold and distributed by Eleven International Publishing. The Hague, Netherlands at: www.elevenpub.com.

May 2013

Noam Ebner Writing on e-mediation as one discrete elementin the field of ODR is a sign of the field’s maturing. The initial phases of the field’s development saw much writing on ODR in general, with multiple processes lumped together under discussions of “technology for ODR” or “justifications for ODR”.

Beyond allowing close-up examination of e-mediation, this opportunity to discern between general ODR concepts and e-mediation benefits ODR as a general field as well, as it serves to contrast the important advances this field is making beyond mediation.

Bernie Mayer noted how closely the field of conflict resolution is identified with the role of the neutral, and most specifically with mediation. He suggested that while the field offers many other roles, services and areas of expertise, its identification with mediation has offered it numerous advantages – as well as significant constraints.

The particular sub-field of ODR, it would seem, is not quite as closely identified with e-mediation as ADR in general might be. This may be due to the multiple influences informing the rapid evolution of the ODR field. Additionally, the two best-known success stories of the field, cited in just about every paper written on ODR, involve online arbitration (ICANN’s UDRP) and assisted negotiation (the primary process of eBay’s dispute resolution process). Finally, it may be that there are things inherent to the online environment that are more conducive to other processes, and Fourth Party functions better suited for assisting processes other than mediation. For example, automation functions may be powerful tools in automated and assisted negotiation, allowing dealing with large volumes of similar-type cases/claims – but less helpful in e-mediation. It might be that the Fourth Party provides enough support or assistance on its own in some cases, allowing parties to work things out without involving a human mediator.

In 2005, Melissa Conley Tyler reported that mediation was indeed the most common individual service offered by ODR service providers (closely followed by arbitration). However, out of the 115 operating ODR service providers identified, mediation was offered only by about fifty providers (many of whom offered other services in addition to mediation). Recent reviews of service providers seem to support this general observation: Online mediation is an important element in the array of ODR services offered, but the ODR field is not (and never was) synonymous with e-mediation.

However, as ODR breaks its original boundaries and explores implementation of e-mediation in new contexts, e-mediation might regain the primacy in ODR that it enjoys in ADR in general.

To explore these issues, this chapter will open up with a brief discussion of the developmentof e-mediation within the wider context of ODR growth. Subsequently, a snapshot of the field’s status quo with respect to stakeholders, modes of communication and technology utilized, as well as the prevailing trends shall be provided. Thereafter, the third section of this chapter will address substantive and process issues ine-mediation: mediation process models, stages and issues, practitioner skills, professional issues, ethics and practitioner standards.

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Biography




Noam Ebner is an assistant professor at the Werner Institute at Creighton University's School of Law, where he chairs the online graduate program in Negotiation and Dispute Resolution.  His writing focuses on Online Dispute Resolution, e-negotiation and negotiation pedagogy. His papers on these topics can be read online here.  His recent book on negotiation teaching, Assessing our Students, Assessing Ourselves (co-edited with James Coben and Christopher Honeyman), is available here.



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Website: law.creighton.edu/wernerinstitute

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