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E-Mediation: Will I Be Replaced By Software?

by Phyllis Pollack
October 2009

From the Blog of Phyllis G. Pollack.

Phyllis  Pollack
E-Mediaton: Will I Be Replaced By Software?

       As some of you know, I am the incoming president of the Southern California Mediation Association (“SCMA”). Before I take my oath of office, I must go through a rite of passage which is chairing the SCMA’s Annual Fall Conference. This year it will be held on Saturday, November 7, 2009 at Pepperdine University, Malibu, California.

       The title of the Conference is “M3 – The Next Generation” and will explore the future of mediation, especially all of the new and varied venues in which it can and will be used. The presenters are from throughout the United States and Ireland and so will be discussing quite diverse views on mediation and its future. I expect it all to be quite fascinating. (See, 2009 SCMA Fall Conference .)    

      Of special interest will be the keynote presentation by Dr. Daniel Druckman from George Mason University who is the Randolph Lowry Lecturer Award Recipient. While he will be speaking on “Intuition or Counter-Intuition?: The Science Behind the Art of Negotiation and Mediation,” Dr. Druckman has also conducted studies on e-mediation or the use of a software program to assist in mediating disputes.

       Along with James E. Druckman from the University of Minnesota and Tatsusi Arai from George Mason University, Dr. Druckman published a study entitled “e-Mediation: Evaluating the Impacts of an Electronic Mediator on Negotiating Behavior” in 13 Group Decision and Negotiation 481-511 (2004).

      In the study, Dr. Druckman and his co-researchers conducted three experiments to determine the impact of an electronic negotiation support system (“NSS”) or, in essence, a software program, on negotiating behavior. The NSS system designed by Dr. Druckman several years earlier,

      “. . . consists of suites of forced – choice questions grouped into five categories, parties, issues, delegation activities, situation and process. Some questions prompt branching to new steps of questions. . . . Other questions, referred to as flipper questions, take into account case – specific contingencies. . . .” (Id. at 484). (Emphasis original)

       Based on the answers received, algorithms are used to “generate a diagnostic grid” which will then lead to “projections of possible outcomes.” (Id. at 484-5). In short, a negotiator inputs the answers to certain questions, and the NSS provides diagnosis (e.g. impasse) and solutions:

      “Specifically, when the diagnosis and projections shown on the grid indicate an impasse in any category, the program provides an analysis of the source of the impasse and a link to advice on how to resolve it.” (Id. at 485-6).

       Overall, the results of the three different experiments revealed that while the negotiators were able to reach agreement more often using e-mediation than simply negotiating on their own and reflecting on what should be the next strategy or move, the negotiators still preferred to use a “live” mediator. ((Id. at 507). The negotiators “. . .had more positive perceptions of the process and outcome” when using a “live” mediator than the NSS software program although they obtained agreement more often and on more issues using the latter. (Id. at 506). Simply put, “perception” was more important than “reality.” (But, isn’t this true in any dispute?)

       Needless to say, after reading this study, I began wondering whether all of my mediation training and skill is for naught: am I going to be replaced by a software program that will have no difficulties in settling cases? I certainly hope not. There has to be something about human interaction that the best robot on earth (e.g. R2-D2 or its companion C-3PO) will never be able to replicate.

       I am keen to learn more from Dr. Druckman at our SCMA Conference! I hope you can join me.

       . . .Just something to think about.


Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides.  When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.

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