ODR's Role in In-Person Mediation and Other 'Must Know' Takeaways About ODR

by Graham Ross
March 2017 Graham Ross

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

 

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.

 

  1. 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.

  1. 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/

Biography


I am a UK lawyer/mediator with a wealth of experience in Online Dispute Resolution. I was trained in commercial mediation by the ADR Group and am a member of the UK Civil Mediation Council and the Ombudsman's Association. I am a Fellow of the National Center of Technology and Dispute Resolution (NCTDR) at the University of Massachusetts. I am also a member of the 12 strong ODR Advisory Group appointed by the Civil Justice Council (CJC) to advise the UK's Ministry of Justice on the role of ODR in a modernised civil justice system. Our initial Report was published in February 2015 and a call for its recommendations to be acted upon has been made by Michael Gove, MP, the Secretary of State for Justice. The Interim Report by Lord Justice Briggs into the future structure of the court system published in December 2015 recommended the proposal in the CJC Report for an online court. I am an expert advisor to The All Party Parliamentary Group on Alternative Dispute Resolution. In 2014, I was invited to advise in meeting the Committee of Legal Affairs and Human Rights of the Council of Europe on the impact of ODR on access to justice and human rights. The Committee produced a draft Resolution, since adopted by the Council, which calls on all 47 member States to promote the development and use of Online Dispute Resolution. In February 2016, I was invited to be an advisor to an EU funded research project led by the Faculty of Law at Salamanca University in Spain to consider the role of online mediation in cross-border disputes. ? As well as my private practice as a business mediator and negotiator, I am Head of the European Advisory Board for a Silicon Valley spin-off from eBay and PayPal called Modria Inc (www.modria.com) the global leader in applying online technology to all forms of resolving complaints and disputes. I have been an innovator in the field of mediation, developing two areas of novel specialism being disputes between shareholders in private companies leading to stalemate situations (see www.BoardroomResolve.com). ? The significance of ODR in the field of Alternative Dispute Resolution (ADR), which includes arbitration and mediation, has been reinforced by the European Commission which has recently passed a Regulation on ODR, and a Directive on Alternative Dispute Resolution (ADR) requiring ADR companies throughout Europe to provide ODR facilities for consumer claims. ? I co-founded the UK's first ODR service, a blind bidding service called We Can Settle in 2000, and two years later the online mediation service The Mediation Room, on which platform trials have been conducted for PayPal, the UK Small Claims Court, the Law Council of Australia and other organisations. ?I was a member of the Working Party of the European Committee on Standardisation (CEN) which developed a Workshop Agreement on standards for Online Dispute Resolution and am currently a member of the EU funded EMCOD project (www.emcod.net) led by the University of Tilburg and which has developed an online tool for the measurement of justice through ODR. ? I was the co-author of the European chapter in “Online Dispute Resolution: Theory and Practice” and which was published in 2010 (Eleven Publishing - ISB 9490947253), which described as "a state-of-the-art overview and assessment of the status quo and future of the Online Dispute Resolution (ODR) field." I speak regularly at international conferences on the impact of the law on the Internet and e-commerce and on technology in the judiciary and Alternative Dispute Resolution. I have been presenting regularly at conferences on ODR since 2002 when the now annual International Forum on Online Dispute Resolution was first launched at the Palais Des Nations in Geneva by the United Nations Economic Commission for Europe. The Forum, which has traveled around five continents, was hosted by myself in 2007 at the University of Liverpool. I have presented most recently at events in 2012 in the Czech Republic, Bulgaria , Poland and Azerbaijan, where he chaired the workshop on ODR at the Internet Governance Forum . In 2012 I was invited by the European Commission to attend an expert group round table in Brussels on introducing a new European Law on Alternative Dispute Resolution and ODR for Business to Business disputes across Europe. In 2012 I was invited to join a working party set up by the UK Ministry of Justice to create a Business Dispute Resolution Commitment to encourage less recourse to the courts. ? I developed the leading training course in applying technology to ADR and, as such, has trained mediators from over 20 countries as well as developing and delivering a course for the Milan Chamber of Arbitration and for the UK Ministry of Justice. I have been invited to advise court services in the UK , Canada and Bulgaria on applying technology tools to improve ADR. I was the founder of LAWTEL the online legal information update service now owned and operated by ThomsonReuters. ? As a mediator I have developed novel techniques within the field of Interest-Based Mediation which operates beyond the traditional areas of compromise by helping each party to the dispute to consider interests they may have that, whilst peripheral to the main issue, can be affected adversely as a consequence of the dispute not being resolved, no matter what the outcome of the litigation. By focusing on identifying all interests, including those not obviously linked, that may be impacted by the continuation of the dispute and examining in detail the potential damage each side may suffer on the absence of agreement, the parties themselves then begin to express their own desire to resolve the matter between themselves. In other words, he works to bring the parties to the point where it is they, the parties in dispute, who begin to press for settlement, not the mediator seeking to coax them into it. ?? My casework experience as a mediator includes:- Shareholder disputes, business acquisition disputes, IT development disputes, book copywriting disputes, consumer disputes and franchising disputes.

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