Mediating on the Internet: Today and Tomorrow (part 2 of 2)

by James Melamed
Jim Melamed
To Part 1

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Subject: Online Mediation; Getting Started

Hello party 1 and party 2:

Thank you for using Online Mediation. I am the mediator assigned to your case. My profile is available at http://www.onlinemediators.com/mediator.cfm?id=1119

I am currently reviewing the case and will be composing some questions to begin the process. I will be sending that message to everyone involved within the next couple of days.

If you have questions about the process or would like to send me additional information, you may reply to this message. Remember 'Reply' will send the message to me alone. 'Reply All' will send the information to me and the other party.

Again, thank you for participating. I will be back to you soon.

Your Online Mediator

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Subject: Time to Get Started

Hello. This is your friendly online mediator again.

Unless I hear otherwise, I will assume that you are satisfied with my selection as your mediator. I will do my best to assist you.

I want to confirm that you understand the voluntary nature of this process and also that you have complete decision-making power. I also want to confirm that our discussions are confidential. No communication will be held against anyone in any possible future contested action.

Please let me know of any questions that you have as we begin our discussions.

Perhaps the best place to begin is to ask for each of you to summarize:

1. The Issues that you believe need resolution.
2. Your Interests (what you would like taken care of)
3. The Options (different ways we could solve the issues).

Thanks for working with me to resolve this matter. I will be back in touch as soon as I have heard from each of you. I encourage you to do a “reply all” on this message so that we can share this information. If you want to communicate with me individually, that would be by a "reply" message (or separate message).

Your Online Mediator

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Subject: Perhaps Some Discussion Between You Would be Helpful

Greetings,

I want to confirm for each of you that I have read your responses on the Online Mediators intake form and your respective descriptions of the situation.

I am thinking, to the extent that you desire, that it might be good for each of you to more fully share with one another (not just me) your concerns and your suggestions for improving the situation.

Also, do you have any questions for one another?

Your Online Mediator

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Subject: How Can We Make This Work for Everyone?

Hi Folks,

Understanding that we may not settle this matter in a way that will be ideal for either of you, we can only settle this matter if we have some flexibility from each of you.

What degree of flexibility would you be willing to demonstrate if the other was also so forthcoming?

Can you think of any exchanges of arrangements that might be acceptable to you both?

Can you think of any package deals that would work?

Are there any other ways that you could benefit one another?

Your Online Mediator

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Subject: How Important Is It For You To Settle This Matter?

Hi,

I sense your frustration.

I would like to hear from each of you as to the relative importance of solving this matter and being done with it.

How could we do that in a way that you could both support?

Your Online Mediator

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Subject: Time to Make Some Progress

Hi,

Thanks for working with me and the process thus far.

My understanding is that the fundamental question is how can we best solve these issues:

(List Issues as "How can we best . . . " or "What is the best way for us to . . .")

Let me now ask, what specific proposals for resolution would you like to make to the other that you believe they may accept?

Your Online Mediator

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Subject: Let's Think About This Creatively

Hi,

Can you think of two different sets of arrangements, either of which would be acceptable to you?

What would you need to receive to agree to the other's proposal?

What would you be willing to give, that you understand they desire, if they were willing to go with your
suggestions?

Thanks for your consideration.
Your Online Mediator

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Subject: A Set of Arrangements for Your Consideration

Greetings,

As we have not been able to easily resolve this matter through direct exchange between you nor through my shuttle efforts to date, I am thinking that this might be a good time for me to describe a possible set of arrangements that I believe may work for both (all) of you.

In offering this possible "reference point," I want to emphasize that this is not necessarily the resolution that I recommend. I have not even processed the information in that way. Rather, this is the resolution that, if you were to ask me, I would think that you would both (all) most likely be able to support.

I ask that you give this "reference point" your fullest consideration and please let me know whether it might possibly be acceptable, if acceptable to the other(s), or of any fine tuning that would be necessary for these arrangements to become acceptable.

Thanks for your consideration and efforts!

Here is the reference point set of arrangements that I ask you to consider:

Your Online Mediator

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Subject: Confirming Your Agreement

Greetings,

The purpose of this message is to confirm what I understand you agree to as a means of resolving this matter.

It is my understanding that you agree as follows:

Terms of Agreement
1.
2.
3.

Please let me know if I have mis-stated this agreement or if I am missing any important pieces.

Your Online Mediator

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For a transcript of online email communications in a divorce case, see: http://www.to-agree.com/advemed.htm


Standards for Online Mediation

With the rapid emergence of online dispute resolution, standards and protocols for effective participation are now being established.

As an example, the U.S. Department of Commerce and Federal Trade Commission are sponsoring a public workshop on: Alternative Dispute Resolution For Consumer Transactions in the Borderless Online Marketplace (See http://www.ftc.gov/os/2000/02/altdisputeresolutionfrn.htm . This public workshop is to examine developments, gain further understanding, and identify potential issues associated with the use of alternative dispute resolution for online consumer transactions. This Notice is also seeking public comments to inform the discussion that will take place at the workshop.

A set of initial Online Mediation Protocols have been developed by The Mediation Information & Resource Center (MIRC) at http://www.mediate.com for its OnlineMediators initiative at http://www.onlinemediators.com. These Protocols are as follow:

MIRC OnlineMediators Protocols for Online Mediation

February 13, 2000

Special Note: These Protocols are in addition to online mediation practice consistent with the ABA/SPIDR/AAA Model Standards of Practice to which all MIRC OnlineMediators subscribe.

I. Description of the Process

The process of Online Mediation typically involves a series of email messages between the mediator and each participant. In his or her professional discretion, the mediator may utilize joint email communication, web forum (more highly secure) discussion, textual or audio chat, instant messaging, fax and phone communications.

MIRC’s Online Mediators program encourages mediators to structure their facilitation in the following manner:

A. Each participant should be encouraged to present one or more confidential statements to the mediator setting forth the issue(s) they believe are in dispute, their interests for any settlement, and the various options the participant sees as possible.

B. The mediator should summarize the issues and seek to gain agreement that the full range of presented issues will be addressed.

C. The mediator is then encouraged to engage in a series of private electronic conversations with each participant, and jointly with participants in the mediator’s professional discretion. These conversations are to include questions to fully understand each participant’s perspective, interests and perceived options, as well as any comments and suggestions that may further settlement by the mediator.

D. Upon conclusion of the electronic conversations, there should either be a confirmed settlement, including means of implementation, or the mediator’s declaration that no agreement has been reached.

E. If there is a settlement, the mediator should prepare a summary of the terms of settlement and ask each side to confirm that they will abide by the terms.

II. Suggested Ground Rules

A. Pre-mediation Responsibilities

1. The participants are asked to notify the mediator of any travel plans or other circumstances that may prevent them from participating for more than 24 hours in the mediation.

2. The participants are asked to notify the mediator of any acceptable alternative email addresses in the event of technical difficulty.

B. Sending/Receiving Email

1. In the event the mediator sends a message to both parties at one time, be aware that REPLY TO ALL will have you sharing information with all listed participants. If you want to only contact the mediator, be sure that you simply REPLY. You can never be too careful in ensuring that only those whom you want to get your message are in fact sent your message.

2. The mediator should respond within 24 hours of receipt of any participant email message or other communication.

3. It is the responsibility of all participants to check their email at least once per 24 hours and to be responsive to mediator communications.

C. Delay in Sending/Receiving Email

In the event there is a delay in receiving a response online, the mediator shall be empowered to telephone, fax or use whatever other means are available to contact a participant. The parties should assume that if there has been no contact for 3 days, they should make every effort to contact the mediator and determine what the problem is.

D. Attachments

It is possible that the mediator will be transmitting attachments to certain messages. If this occurs, it is important that all participants are able to read the attachment(s). The mediator is therefore to seek to obtain agreement on an acceptable format (i.e. Word, Wordperfect, Rich Text Format or ascii) at the beginning of the mediation.

E. Distribution of Messages

All electronic communications generated from the mediation shall not be permitted to be distributed to a non-participant at any time without the express permission of all parties and the mediator. In the event of an inadvertent distribution, all effected participants shall be promptly notified.

F. Management and Disclosure of Information Online

The mediator shall only disclose specific offers and ideas from one participant to another as the mediator is expressly authorized to share. If it is unclear whether a mediator is authorized to share information, the mediator shall request this permission from a participant and only share information with the other participant as is authorized.

G. Privacy Protected

1. The participants agree to not use any of the information presented or received during the mediation in any future legal, administrative, or other contested proceeding, nor in the media. This includes all communications between the participants and with the mediator and OnlineMediators program from the earliest contact regarding possible mediation to the completion of the mediation.

2. The participants further agree to not disclose any information presented or received to other people who are not participants to the mediation, with the exception of participant professional advisors (attorneys, financial advisors, union representatives, and the like). In all such events, that fact that a participant consults with a professional advisor does not in any way lessen the confidentiality of the online mediation process. The confidentiality of Online Mediation is intended to protect all participants with the expectation of such confidentiality (non-admissibility and no contacts with media) and also to protect the mediator and OnlineMediators Program.

The Future

One is hesitant to publish a document such as this as the Internet is so rapidly expanding that we are surely just at the beginning of the development of online dispute resolution. There are already efforts to improve online case management, mediator conflict disclosures, agenda development, consensus determination and voting tools, joint document editing and incorporating agreement models and situation/solution data bases.

Assuming that the Internet and high speed connections become as common as the telephone and television (many say they will all be part of the same devices), then it is certain that online dispute resolution will grow if only based upon cost and convenience. There will be "set system environments" (processes like blind bargaining and perhaps arbitration), as well as "open system environments" such as OnlineMediators where negotiators and mediators flexibly utilize a number of different facilitative tools.

Perhaps the greatest challenge will be for our dispute resolution processes, especially mediation, to maintain integrity and meaning as dispute resolution moves online. Now more than ever, we need to define exactly what "mediation" is before the process is so variably presented on the Internet that the meaning of the word itself becomes blurred and confusing. There are many other issues,such as: Just how "voluntary" will mediation be on the Internet? And how confidential? How will mediators be selected in a way that ensures their integrity? Their competency? What do we do when parties do not reach agreement? Stay tuned for consideration of these and the many other issues that certainly lie ahead.

Biography


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's undergraduate degree is in in psychology from Stanford University and his law degree is from the University of Oregon.Jim has received the following awards: The Oregon Mediation Association's 2003 Award for Excellence; The Oregon State Bar's 2006 Sidney Lezak Award of Excellence; The Association for Conflict Resolution (ACR) 2007 John Haynes Distinguished Mediator Award; and The 2012 Academy of Professional Family Mediators (APFM) "Getting To Yes" Award.



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