Divorce Mediation and the Internet

by James Melamed
January 2002 Jim Melamed
The Internet is changing the way divorce mediation is practiced and experienced. The Internet is becoming an ever more integral part of effective and affordable divorce mediation services and programs. The following uses of the Internet are common and increasing:
  • participants seek mediators through Internet search
  • mediators and programs describe their services through professional web sites
  • participants and their attorneys exchange information about possible mediators by exchanging links to mediator web sites
  • mediators distribute information to clients by email with attachments and web pages links
  • mediators and participants correspond separately or jointly by email
  • mediators use email mailboxes as a filing system
  • mediators receive faxes as attachments to email
  • draft agreements may use 'track changes' features showing changes
  • mediators utilize web resources to obtain information and educate participants
  • participants and mediators obtain statutory, regulatory, child support, and other information online
  • participants and mediators perform child support calculations online
  • mediators engage in professional education online
  • mediators and participants utilize secure discussion environments
  • participants may utilize online resources to help them implement their agreement

Adapting Internet technologies to mediation is not accidental. Increased use is based upon the effectiveness, convenience and affordability of various Internet strategies. In addition to enhanced communication capacities, the Internet offers mediators and participants a vast knowledge base and discussion communities. The Internet is for many a comfortable, if not preferred, and empowering means of research and communication. The Internet is also relatively free of safety concerns, perhaps because it is impossible to receive a bloody nose over the Internet and because Internet communications are memorialized, which creates a measure of accountability.

Beyond Face-to-Face Dialogue

Does all this mean that the Internet will replace face-to-face divorce mediation? The end of face-to-face divorce mediation does not loom, at least not in the short term. Current utilization of the Internet in the divorce arena is evolving more as an augmentation than replacement of face-to-face discussions. One can, however, envision a day when the context and medium for mediation discussions may in fact become primarily electronic, with face-to-face meetings being the augmentation, perhaps even the exception.

While this may sound somewhat futuristic, it is already happening in Singapore where the country is fully connected by broadband and there are substantial traffic and congestion obstacles to offering mediation services downtown. Use of the Internet will continue to grow based upon such factors as ease, economy and capacity. All said, the communication abilities, capacity building and participatory qualities of the Internet are wonderful extensions of the face-to-face mediation process. Few wise mediators resist additional process options and in the Internet we have a number of newly available approaches that can meaningfully enhance the practice and experience of divorce mediation.

Example: It is now common for mediators to direct clients to the mediator’s web site, to send information as an email attachment, or to send information by fax, rather than using “snail mail.” In fact, failing to expeditiously deliver information to potential clients may jeopardize the mediator getting a case. In addition to being immediate, the volume of information delivered over the Internet does not impact the cost of delivery. Client expectations are rapidly shifting toward the availability of complete information and the enterprising mediator and program is responding with swift Internet response. A user friendly web site and effective Internet practices are emerging as the standard for effective divorce mediation practice.

Legitimate questions can and should be raised about Internet security, confidentiality and the “digital divide” (those with lower incomes having less access to the Internet). In examining these issues, we also need to be fair and to examine the security, confidentiality and distribution of non-Internet communications and services. The digital divide is in fact less of an issue every day as the Internet is rapidly becoming as ubiquitous as having a phone. With the increasing ubiquity of the Internet, we may well find the Internet to be a means of delivering mediation services to places and people that has never before been possible. While mediation on the Internet may be imperfect, it may be no more imperfect than other processes, and surely better than no mediation at all. The use of the Internet in mediation raises a number of policy issues. If we can save costs and time and create capacity and follow-through with the Internet, this is compelling. Utilized well, the Internet offers a vital channel and bridge between the mediator and participants. The Internet especially makes sense when there is difficulty in scheduling meetings due to work shifts, geography, animosity, fear or other obstacles. In these situations the Internet may be the only effective and affordable means of delivering services. Use of the Internet in divorce mediation should be viewed as a set of opportunities that are available to mediators and participants for enhancing and, in some cases, replacing face-to-face mediation discussions.

The Joy of Asynchronous Communication

Perhaps the most notable quality of most Internet communications is the common “asynchronous” nature of the communication. This means that most email and web-based communications are not a live “real time” experience, but rather the message is crafted and only sent when ready. This process of thoughtful, crafted messages and responses is valuable to the mediator and the mediation process. Asynchronous Internet communication has the advantage of being edited in contrast to impulsive responses that often take place in real time face-to-face mediation discussions.

Experienced mediators are well aware of the benefits of asynchrony. This is one reason that many mediators “caucus” (meet separately) with participants. Mediators want to slow down the process and assist participants to craft more effective proposals. Surely, the Internet works capably as an extension of individual party caucus and is remarkably convenient and affordable. Internet communications take little time to read and clients do not hear a ticking of the billing meter. When the Internet is utilized for caucus, the non-caucusing participant does not need to sit in the waiting room or library growing resentful at being ignored.

While there is much to recommend about the Internet, it should also be recognized that there are certain limitations and risks to its use. For example, unless you have a real-time Internet hook-up (chat, audio or video) you are not able to “interrupt” a participant’s (possibly foolish) presentation, so they may go off on long tangents that are not particularly helpful or are perhaps even destructive. There are also meaningful issues of security and confidentiality that are discussed below. Some users also say that text-based Internet communication is not good for effectively developing rapport. This may change as the Internet becomes more “real” with audio and video communications as part of the expansion of broadband connectivity.

The Development of Rapport

Without rapport, the mediator has nothing. Experienced mediators know the critical importance of developing rapport with participants early in the process. One challenge to using the Internet for divorce mediation is the difficulty of achieving rapport. At least at present, face-to-face meetings take place in a richer sensory environment. The rapport building capacity of the face-to-face environment, and also of a phone conference call, is important for the online mediator to note. It may be worthwhile for a group that intends to work online to hold one or more face-to-face meetings to clarify process, develop rapport, consolidate progress and develop the means of continuing an effective dialogue while online. For the mediator who wants to do as much as possible online, an initial face-to-face meeting or phone conference call will add “feeling” to online discussions and is then also available as may be helpful as the online mediation progresses.

It is important when thinking about the Internet to not think in “either/or” terms. We can build rapport in person, by phone and on the Internet. There is no reason to limit our modalities of communication. If we are wise, we will be responsive to the participants’ desired ways of communicating. In this context, we will surely see an increasing number of participants wanting to use the Internet in the mediation process.

All mediators benefit from a quality web site and responsive and capable email and web practices. Assuming that the Internet is within participants’ comfort zones, the mediator’s capable Internet performance will enhance participants’ respect and admiration for the mediator. It will also likely improve the participants’ experience of the mediation process.

Assuming the benefits of face-to-face meeting, particularly for joint discussions, it is also worth noting that the face-to-face benefit likely lessens over time. Once rapport is in place, there are few issues that cannot be discussed and agreed upon over the Internet. When it comes to decision-making, the unrushed Internet environment may in fact be preferable to the pressure of the face-to-face environment.

Distance and Post-Decree Modification

This use of the Internet is particularly compelling when participants live at a distance. The relative cost savings of Internet communications becomes greater as the distance between participants increases. The Internet is especially capable of dealing with post-decree adjustment of parenting and support agreements. The Internet may be a safer and less pressurized environment to consider possible changes than a single “crisis” mediation meeting. The Internet may, thus, especially be worth considering for post-decree modifications. With familiarity presumably in place and the divorce somewhat in the past, more participants are using the Internet to consider modifications to their arrangements, especially when parents live at a distance. The reality is that many divorced parents are already using email as the primary means of communicating both at work and in their parenting relationship. Extending this to include mediation discussions is more and more natural. If getting together is in any way difficult or costly, we will find more and more modification discussions taking place online.

Using the Internet Between Face-To-Face Meetings

Internet communications can be the glue and grease that keep a dialogue effectively moving forward between face-to-face meetings. Channels of communication can be opened with each individual participant (an extension of the caucus) and with the parties jointly (an extension of joint discussions). The Internet is also particularly good for assigning and completing individual or joint homework. Homework assignments can support incremental progress toward agreement.

Some might say that the Internet is the mediator’s new best friend. The Internet allows the mediator to send correspondence to participants in a flash, attach resource documents or a draft agreement, and direct participants to check out valuable resources on the web by providing web links. Wow!

It is also common in divorce mediation, once an email channel has been created and rapport is in place, for either the mediator or a participant to stimulate an email “stream of consciousness” series of communications. Participants tend to share their thinking “out loud” and “run it by” the mediator in terms of reasonableness, benefits and costs. The mediator and participant can engage in an ongoing dialogue about perceptions, interests, options, means of improving the presentation and the like. The mediator is similar to a pen pal assisting participants with their thoughts and moving them forward. It is noteworthy that many participant communications are generated during the late evening, after the children have been put to bed and participants are alone with their thoughts at the end of a long day. Not only do these Internet communications assist participants to move incrementally forward in their thinking, they are also convenient, efficient and affordable.

Empowerment of Participants

The web is a powerful resource for empowering mediation participants. Needless to say, mediators will want participants to review their posted professional information which is now commonly at a professional web site. Mediators can also use the web as a means of assisting clients to gain information about mediation, conflict resolution and divorce issues. (See Resources, below).

If nothing else, the Internet offers participants sources of information that can empower and assist them to normalize their experience. Participants quickly learn that they are not the first ones to be divorced and that there are lots of resources available on divorce issues. Participants may benefit from online divorce discussion groups and from divorce adjustment and parenting information and classes that can either be located locally or offered online. The Internet is also a wonderful opportunity for participants (and the mediator) to research issues and to create capacity that is certain to benefit decision-making.

The Creation of Internet Capacity for Each Participant

In pre-Internet days, a sign that a divorce was moving forward was the establishment of separate bank accounts. Today, it is the establishment of separate email accounts. Whereas a single email account and computer may work well enough when a couple is married, at the point of separation, the time for a shared Internet resources has come to an end. Hence, it is common for a divorce mediator to ensure that participants who want to utilize the Internet each have separate and private Internet capacity. This discussion is itself intriguing. It is common that one spouse has taken the Internet lead in the marriage. This spouse, usually out of a spirit of kindness and generosity, may offer to “set up” the other spouse with an email address and/or separate computer. While in many situations this seems to make good sense (because of one spouse’s knowledge, cost, convenience and perhaps an overall atmosphere of trust), it is also important for both participants and the mediator to know that this could result in compromising the less savvy participant’s electronic security. One does not want to be paranoid nor induce paranoia within participants, but it is not unreasonable for a mediator to suggest that it may be best for each participant to have truly independent Internet capacity. This establishment of independent Internet capacity and proficiency can be, especially for the less Internet savvy spouse, a meaningful and valuable accomplishment, not only for mediation discussions, but for exploration and development of their post-divorce life.

Confidentiality and Security

It is important to distinguish between issues of confidentiality and security in mediation and on the Internet. Confidentiality in mediation has to do with protecting mediation communications in all forms from being offered as evidence in any court or other due process hearing. From a confidentiality perspective, online communications are an extension of face-to-face communications (as are phone, fax and hard copy communications) and therefore traditional rules would seem to apply. Mediators first need to understand these statutory and regulatory provisions for mediation confidentiality in their state and to then consider augmenting these understandings based upon intended use of the Internet.

Participants may want, for example, to use Internet communications exclusively as part of their mediation and to not copy any of those communications to anyone other than the other participant and the mediator. Mediators are advised to think about how they intend to utilize the Internet and to specifically address the confidentiality and security of these communications in their Agreement to Mediate. Once communications are digitized, there is also the question of how long these records will be maintained by participants, the mediator, a mediation program and an Internet service provider. While it is hard to anticipate all issues that may come up, participants and the mediator are wise to ask themselves whether they want to have any direct agreements about the limited distribution or limited perpetuation of online mediation communications and records.

It is also important to consider issues of security (as opposed to confidentiality). Security speaks to the issue of how well protected mediation communications are from being seen or shared with unintended third parties. An example of a security system is a web site that requires assignment of a user identification number and password. Only those individuals who are authorized by the parties can access the discussion and resources. This user id/password system is the most common type of Internet security. Note that issues such as how to assign a user id number and password and how the mediator, the parties and attorneys store this information must also be addressed. It is helpful that passwords can be changed, but by whom? There is also the legitimate question of just how interested the rest of the world is in a particular divorce mediation online discussion. We should note that communication by other means, including hard copy, fax, phone and voice mail is far from fully secure and any imperfections in Internet security should be evaluated not against a standard of perfection but in comparison to the other communication modalities that are available, each with their own imperfections.

So, what is the mediator to do about security? First, it is suggested that this issue should be directly addressed in the mediation and in educational and contractual materials for the mediation. A provision such as the following might be inserted into the Agreement to Mediate:

“The mediator and participants agree that email and other Internet means of communication may be utilized for ongoing mediation communications without limitation and as part of the confidential mediation discussions. This includes attachments, links, faxes, any and all file types and all means of Internet and other electronic communication. Participants will not forward nor otherwise further distribute any Internet or other electronic communication to anyone who is not directly participating in the mediation. These online communications are as confidential as permitted under the law. If desired, participants understand that they may request that a more secure user identification and password system be utilized for their mediation Internet communications.”

Email Communication Between Parents and the Children

As more and more parents use email at work and for their family communications, it is only natural that email communication is used by parents communicating with one another following their divorce, especially regarding parenting and support arrangements. Parents may also utilize email, the web, instant messaging and chat for communicating with children when they are at the other parent’s home. These modern day realities are best brought directly into the mediation discussions. The parties are advised to explicitly discuss any and all protocols for their Internet communication as well as their abilities and limitations on communicating with children when at the other parent’s home. The communication capacity of the Internet is useful for divorcing parents and their children and the capable mediator can assist participants to identify these opportunities.

There are a number of issues to consider when parents are sending Internet communications to their children at the other parent’s home, most notably issues regarding whose computer is being used and who has access to the information. Children may have their own computer, be given a “section” of a parent’’s computer, or perhaps be provided with a laptop that they can take with them to each parent’s home. While technically it is not difficult to create a separate identity and security for a child on a parent’s computer, a determined parent (as the computer’s administrator) can almost always figure out ways to access information if that is desired. This is perhaps as much an issue between each parent and their children as between the parents, but it is worth noting and discussing so as to clarify everyone’s expectations.

Parents who are often online may also choose to link up with the other parent or with their children through “instant messaging” such as that offered by Yahoo, MSN, ICQ or AOL. Instant messaging allows the sender to “interrupt” the recipient (usually with a flashing icon and/or beep) to say that a message is waiting. These “intercom” technologies, which also include real time “chat,” are bringing families closer to one another, divorced or not. These systems now include real time audio and web cam capacities. The divorce mediator can build upon these resources to assist families to communicate. Plus, some of them are really “cool.”

Child Support Information and Calculation

The Internet can be a very effective tool in the area of child support. Child support negotiations are dominated by the reality of child support guidelines. Federal law requires each state to have these guidelines for the calculation of child support to create predictability and consistency in the application of child support. The calculated guideline for child support is the “presumed” amount of child support, which can, if desired, be rebutted and modified for a variety of reasons that are established by state law.

Most jurisdictions provide child support information on the Internet and some do a very good job of it. They know that parents with clear information and the ready ability to calculate are more likely to agree. You may want to do a “Google” search (www.google.com) on your state name and “child support,” such as “Oregon child support.” A number of states now provide child support calculators online. There are also some web sites that provide a number of state calculators. Be sure that you and participants are operating with the most recent state guidelines available. It is best to start out searching for formal state resources.

The divorce mediator can also develop form email letters (often called “forms” or “stationary”) that include valuable child support and other resource links. Clients will appreciate you for making this valuable information available to them.

Similarly, by using a search engine such as Google, mediators and participants can find valuable information on parenting, financial management, property and debt division, tax laws relating to divorce, etc. The amount of information that is available on the web for education, empowerment, normalization, calculation, consideration, comparison, etc. is truly amazing. Participants understandably look to their divorce mediator to provide guidance to resources during what is often a disorienting and crazy time. Divorce mediators are wise to do a bit of research on parenting, support, property, tax and other resources in their state or province and to make these resources readily available to participants. This is an opportunity to be of service and to be viewed as knowledgeable and a source of valuable assistance.

Distribution of Progress Summaries, Homework and Draft Agreements

Compared to “snail mail,” it is cheaper and faster to communicate by email and attachment. This method of delivery also allows participants more involvement in the drafting process. This involvement promotes a sense of ownership and participants are more likely to embrace the completed agreement when they and their lawyer can electronically exchange drafts for review and input.

A written summary of progress made during each session does three things: 1) identifies interests, options and points of apparent and possible agreement; 2) offers a list of “homework” (things to think about and do in preparation for a next meeting) and 3) suggests agenda items for the next meeting. If one is to compare participants receiving this information a few days after the mediation session (if sent by snail mail) to receiving the same information digitally an hour or two after the session, argument can easily be made in favor of the swifter and more empowering Internet distribution. Using email and attachments as a basic method of communication saves time, money and the environment. Most importantly, it impresses participants and assists them to capably, expeditiously and economically move forward.

The Moving On Process

The Internet offers divorcing spouses opportunities for healthy independence, communication and personal development. Mediators are wise to recognize the many opportunities for participants and their children to communicate on the Internet following divorce. When it comes to implementing parenting arrangements, more and more parents are saying “thank heaven for the Internet.” To the extent that the Internet benefits parental communications, the beneficiaries surely also include the children. The Internet takes the pressure off of parenting transitions and inconvenient and difficult phone calls. The Internet offers parents the opportunity to slow down and to be at their thoughtful best. The Internet allows parents to better be there, even when they can not fully be there.

Conclusion

Participants, mediators and mediation programs are already engaging in mediation communications over the Internet. The reasons are obvious: effectiveness, speed, convenience, affordability and capacity to name a few. In addition to acting as an extension of face-to-face joint and caucus discussions, the Internet offers unique qualities such as asynchrony, a vast knowledge base, and participant ability to be involved in drafting agreements. Just as mediators have aptly integrated the phone, fax and word processor into practice, mediators are integrating the Internet. Use of the Internet is especially compelling when participants are comfortable with and desirous of digitally communicating and when participants are at a distance or getting together is otherwise difficult. Even if it is easy to get together, utilizing the Internet as an augmentation of face-to-face discussion makes sense if only for reasons of speed, ease and economy. Effective integration of the Internet is a means for divorce mediators to distinguish themselves in the marketplace and to offer additional valuable service to participants.

Resources

Leading online mediation sites include: • www.mediate.com • www.afccnet.org • www.crinfo.org • www.acresolution.org • www.odrnews.com

Leading divorce information sites include • www.divorceinfo.com • www.divorcesource.com • www.divorceonline.com • www.divorcenet.com • www.divorcelawinfo.com • www.divorcing.com • www.thedivorcesite.com • www.divorcehelp.com • www.divorcehq.com • www.ourfamilywizard.com

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.



Author Website

Additional articles by Jim Melamed

Comments