Resolucion de disputas en y por internet (4/12/08)
Nora Femenia, Ph.D
El desarrollo de los métodos alternos de resolución de conflictos ha llegado al medio electrónico, donde tiene un poderoso aliado. Dado el crecimiento vertiginoso de las transacciones online, urge desarrollar nuevos métodos de resolver conflictos adaptados al medio electrónico. El internet ofrece tanto seguridad como privacidad, rapidez y bajo costo al procesamiento masivo de quejas y disputas con clientes de comerciantes online. Aquí se describen sus principios, sus diferencias y algunas exitosas aplicaciones prácticas.

Online Mediation Moves to Second Life (4/07/08)
Keith Seat

Law students in a dispute resolution class at the University of Dayton Law School are honing their skills in mediations held in the online world of Second Life, where each participant is shown as an avatar or animated character who communicates through its user’s voice or by text messages. In addition to the general communication among the group, separate private Instant Messages can occur simultaneously. Compared to communicating through conference calls, personality can come through in how the avatars are dressed and move. Biases based on appearance or voice can be eliminated, but gestures and facial expressions that are important to communication are also lost.

Dayton Daily News (March 16, 2008)

Four Questions About International Online Dispute Resolution Part Three (4/07/08)
Gini Nelson

Today’s post continues a series co-authored by myself and international business attorney Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One, Part Two.]

This post addresses the question:

What Disputes Work Well for ODR?

Online ADR works well for most business disputes, assuming the parties want to obtain a mutually-acceptable resolution to their problem as opposed to “winning.” ODR is amenable to the same styles available in traditional ADR, such as early neutral evaluation, arbitration, and mediation. In fact, in addition to removing geographic barriers, ODR has certain other advantages over traditional face-to-face ADR. For example, with non-visual ADR the parties are spared certain body language and facial expressions that can be counter-productive to resolving the dispute. By removing these visual distractions, the parties can focus on the substantive issues of their problem and improve the chance at reaching a resolution.

This series will continue next week. Next post: My Contract Does Not Address ODR, Can I Take Advantage Of It?

Four Questions About International Online Dispute Resolution Part One– (3/31/08)
Gini Nelson

Today’s post introduces a series co-authored by myself and international business attorney Vonda K. Vandaveer.

For business leaders, alternative dispute resolution rather than litigation has no doubt become the preferred process for handling problems, thanks to its efficiency, cost-effectiveness, and flexibility. As businesses become more global, however, the traditional methods of face-to-face mediation, arbitration or other dispute resolution processes pose significant logistical barriers to parties separated by oceans or continents, calling into question traditional ADR’s value in these circumstances.

For example, a U.S. company with a prime contract to build a camp for the U.S. Army in Iraq may subcontract with a local vendor for day laborers. The contract drafted by the U.S. company inevitably will provide for some form of ADR, such as mediation, but equally inevitably the U.S. company will place venue in its home state, thousands of miles away from the other party.

Needless to say, such a provision presents a financial and logistical hardship to the foreign subcontractor. Not only does the party have to share the mediator’s expenses, its representatives would have to pay for air fare and lodging in the foreign venue.

In addition, this travel means valuable time away from their own business. As would be expected, this term in reality has a chilling effect on the distant party from engaging in ADR with the U.S. company. In fact, if the contract drafter is the more powerful of the parties, it may have included the clause with that very intent, knowing the smaller company has no leverage to argue for a more even-handed term.

If the parties are of equal power, at most they might negotiate venue in a neutral location, which means in case of a dispute both parties will have to pay for flights and lodging and take time away from their work. In addition, unless the parties find a mediator in the local jurisdiction, they would have to pay for the mediator’s expenses as well further augmenting expenses. As a consequence, with no incentive to engage in ADR, the parties will likely end up in court in one jurisdiction or another, the very result both parties were hoping to avoid.

These parties, though, have another solution to these logistical problems that should be included in the international ADR repertoire: online dispute resolution, also known as ODR.

With online dispute resolution, these logistical barriers pose no problem. Each party and the neutral all remain in their respective locations while engaging in the dispute resolution process, saving costs and time away from work. This article wiill address these questions:

1. How Does ODR Work?
2. What Disputes Work Well for ODR?
3. My Contract Does Not Address ODR, Can I Take Advantage Of It?
4. Are There Special Considerations In Selecting An ODR Leader For Business Disputes?

This series will continue next week.

Authors:
Vonda K. Vandaveer is an attorney based in Washington, DC concentrating on international business law, immigration, and federal procurement. She publishes the U.S. Business and Immigration Law blog, and can be contacted at (202) 340-1215, and vonda@vkvlaw.com. Her law firm site is www.vkvlaw.com.

Gini Nelson is a mediator and attorney based in Santa Fe, NM who publishes the Engaging Conflicts blog. Previous Engaging Conflicts posts on ODR include posts about Cyberweek 2006 and Cyberweek 2007.

Four Questions About International Online Dispute Resolution Part Two– (3/31/08)
Gini Nelson

Today’s post continues a series co-authored by myself and international business attorney Vonda K. Vandaveer on the use of online dispute resolution to solve problems associated with traditional ADR. [Earlier posts: Part One.]

This post addresses the question:

How Does ODR Work?

ODR takes advantage of technology that most everyone in business already uses, such as computers, internet, email, instant chat, video conferencing, telephone conferencing, and increasingly VoIP (e.g. Skype).

ODR is not radically different than ADR. In fact, ODR-ADR hybrids already are in common use. Traditional ADR is typically supplemented with online interactions such as email.

Just as with traditional ADR, there are several ways of conducting online ADR, depending on the technology available to the parties and the nature of the dispute.

The various processes include:

1) Documents and party communications being sent by email;

2) Conferencing and meetings being held by video, by voice, or in chat rooms, with communications being shared or private, as the situation warrants.

3) Using a white board (a shared computer desktop) for sending and viewing documents and “signing” any agreements.

These various processes are designed to provide the same confidentiality and privacy that one finds with traditional, face-to-face dispute resolution.

Skype Meeting Tips (3/31/08)
Tammy Lenski

As more and more of my business calls are international, I've found Skype an invaluable tool for keeping the phone bills reasonable and being able to see eye-to-eye with the person at the other end of the phone line.

So I appreciated Chris Garrett's Tips for Better Skype Meetings. For example, Chris suggests,

Add contacts as your first job - Rather than waiting 'til the last minute, it is best to swap and add contact information before. Also share landline or mobile numbers in case Skype fails you. It does happen, bad lines, connection drops, service downtime, so best to be prepared.

Arrange a suitable time - Consider work schedules and timezones. Plan using a world clock service. Neither party will be on their best if the time is set too early, late, or in the middle of family time. Sometimes it is unavoidable, but it is best if participants are not yawning or distracted by kids jamming toast in the DVD player while trying to hold a conversation.

Read the whole article for the full list of tips, and the post's comments for additional thoughts and opinions from Chris' readers.

For past references here to Skype, try these:

• Skype: Make Free Calls from Your Computer
• ADR in the 21st Century: Easy Tech Tools to Manage Your Practice

What tips do you have for using Skype effectively?

Copyright © 2008 by Tammy Lenski. All rights reserved.

Nobody Does It Better: An Interview with Diane Levin (3/10/08)
Gini Nelson
This is an interview by Gini Nelson of Diane Levin. Diane Levin publishes the award-winning blog, Mediation Channel, which explores conflict resolution, negotiation, and the law, together with the social and cultural influences that shape them. It also regularly features articles on mediation, in particular the training and credentialing of mediators, and examines the intersection of law, justice, and ADR. Mediation Channel has been designated a “Featured Blog” at Mediate.com and attracts regular readers from throughout the world.

Cybersettle Makes The Case For Resolving Disputes Online (2/27/08)
Diane J. Levin

Richard Susskind, digital technology expert and legal visionary, once said, “The best way to predict the future is to invent it.”

That’s exactly what Charles Brofman did. He invented the future.

Brofman, a former trial lawyer, is the co-founder of Cybersettle, the world’s leading online claim settlement company. Cybersettle makes use of what is known as online dispute resolution (ODR), a kind of dispute resolution process that utilizes digital technology to settle claims quickly and economically.

In 1996, Brofman had the foresight and rare common sense to create Cybersettle. What sparked this vision? A situation familiar to any trial attorney or mediator who has wrestled with a case that just won’t settle:

Cybersettle grew out of a 1995 encounter between seasoned trial attorneys Charles Brofman and James Burchetta who were representing opposing sides in attempting to settle an insurance claim. Jim, who in this case was representing the plaintiff, had demanded tens of thousands of dollars more than the amount Charlie, the defense counsel, was willing to offer. Both parties were well aware of what amount would eventually settle this case, but neither wanted to compromise his bargaining position – so on to court they went.

In the courthouse, they agreed to secretly write down their bottom line numbers and hand them to a court clerk, who was instructed to give them a “thumbs-up” if they were within a few thousand dollars of each other. If the case didn’t settle, the clerk would destroy the papers and never reveal the figures. He flashed a “thumbs-up.” The amounts were within $1,000 of each other. They split the difference and settled the case within minutes.

Cybersettle was thus born of the desire to help lawyers and others accomplish what sometimes can feel like the impossible: get cases to settle fast and fairly.

So, how does Cybersettle work?

Cybersettle utilizes a patented automated, online, double-blind bid dispute resolution system which allows disputants to resolve claims quickly and confidentially. Optional telephone facilitation is also available when necessary to smooth out communication difficulties and keep settlement negotiations on track, or when parties are close and can benefit from the help of a skilled neutral.

The online service generates high-speed settlements by matching offers and demands. Once the process gets underway, disputants have three opportunities or rounds to settle a claim. One demand or offer is entered for each round; Cybersettle instantly compares the demands to the opposition’s corresponding offer. When the offer is greater than or equal to the opposition’s demand, the claim instantly settles.

Who uses Cybersettle? And why?

Cybersettle has many satisfied customers, as its case studies testify, and has assisted in almost 200,000 transactions, representing $1,457,299,751 in settlements to date, an impressive figure.

Among those who use Cybersettle are attorneys and other legal professionals; insurance carriers and claims professionals; third-party administrators and self-insureds; and government, including municipalities.

But why would they use Cybersettle?

New York City has 11.6 million reasons why. That’s the number of dollars the City saved during its first year using Cybersettle. Faced with a backlog of 40,000 cases, the City needed to take drastic steps. The first city to integrate Cybersettle into its settlement process, New York was able to settle 66% of its cases within 30 days, reduce its backlog significantly, and realize significant cost savings.

For its clients, Cybersettle is virtually a no-risk proposition. The double-blind bidding means that parties can submit their walk-away numbers without compromising their position. This means that there are none of the worries associated with making first offers or other pitfalls of face-to-face negotiation. Most importantly, parties don’t pay unless they settle. I’ll say that again. Parties don’t pay unless they settle. What’s not to love about a system like that?

Speed and 24/7 access — much like an ATM or your favorite convenience store — are other qualities that make Cybersettle so appealing. Trained phone facilitators are also available during normal business hours if parties need the extra nudge to cross the finish line.

Curious to find out how it works? You can take Cybersettle for a test drive.

Final thoughts

Incidentally, Brofman’s talent for predicting the future is not limited to digital technology. Not only did he see the future in ODR, but on a phone call with him back in January, he correctly predicted that the New England Patriots would play the New York Giants in the Super Bowl and that the Giants would win. This is one guy who’s skilled at looking ahead.

Interested in finding out more about Cybersettle? Visit Cybersettle’s web site. And if you’d like to learn more about the brave new world of technology-mediated dispute resolution, read “Settling It On the Web“, an article from the ABA Journal which provides an excellent introduction to ODR.

Head of U.S. Office of ADR Services describes benefits of online dispute resolution (2/19/08)
Diane J. Levin

In an interview with Government Computer News, Daniel Rainey, Director of the Office of Alternative Dispute Resolution Services for the U.S. National Mediation Board, makes the case for online dispute resolution (ODR).

Rainey, an internationally recognized authority on ODR, explains how collaborative technology can be used to resolve disputes successfully while saving time and money, as well as to promote online brainstorming and negotiation, streamline the intake process, and facilitate the drafting of agreements once resolution has been reached.

Rainey also discusses the work and upcoming projects of the Interagency Alternative Dispute Resolution Working Group, created to coordinate, promote, and facilitate the effective use of ADR throughout the federal government.

“Daniel Rainey | Online system takes a quick route to resolving disputes” is available at the Government Computer News site.

Why InstantAssist Makes Sense (1/09/08)
James Melamed
InstantAssist at InstantAssist.com is Mediate.com’s new service that offers immediate online (phone, email or chat) negotiation and conflict resolution coaching. InstantAssist opens for business on March 1, 2008. InstantAssist is truly revolutionary. For the first time, we associate the need for services and the provision of services in real time. Our goal is to bring constructive negotiation and conflict resolution to every desktop, laptop and phone. InstantAssist is an on-ramp to people being smart about negotiation and conflict resolution and will surely lead to additional utilization of the mediation process.

Simplify How You Handle Email Inquiries (11/20/07)
Tammy Lenski
A side effect of a thriving mediation practice is an increase in email inquiries, especially when you have a healthy web presence as part of your marketing strategy. I’ve seen my email inquiries triple in the last year and the increase shows no sign of abating…nor do I want it to!

But the increase made me realize that typing responses fresh each time was a monumental misuse of my time. So when I hired a VA in 2006, one of my first projects was getting her help in creating a series of pre-written email messages for my most common inquiries.

Pre-written emails not only save my time, but also improve my response time to inquiries, and so my prospective clients receive a benefit too. Pre-written emails also help ensure consistency of message and I no longer occasionally forget to include key information I believe will benefit clients’ decision making. And because I’ve crafted the “skeleton” of my reply with great care, I can respond with greater finesse than when I’m churning through large numbers of emails.

A process for managing email ADR inquiries

Here’s the process we now use in my ADR business:

1. An email inquiry arrives in my inbox.
2. My VA or I identify the inquiries for which there are pre-written replies already drafted.
3. A draft reply is created, using a little piece of software (more on this below), and saved in my email Drafts folder.
4. I open the draft reply and original inquiry, then modify the draft message as needed to personalize the response.

Total time per message before the era of pre-written drafts: 5-15 minutes. Total time with pre-written drafts from which to craft my reply: 1-5 minutes.

ADR inquiries that lend themselves to reply templates

Not all inquiries lend themselves to the use of a pre-written reply, of course. I chose inquiries like these to craft template replies:

• Requests for more information on each of my services
• Requests for my fee schedule
• Requests for free consulting time on the phone
• Follow-ups to networking and other events
• Offers to co-mediate with me
• Notifications from colleagues that they’ve referred a prospective client to me

Software to help with pre-written email messages

I use a Mac and love TextExpander for this task. Windows users, you might take a look at this solution from Lifehacker. There’s also a program with both PC and Mac versions called QuicKeys. I haven’t tried it but Duct Tape Marketing’s John Jantsch swears by it in an article I recommend for further reading: Pre-written Emails to the Rescue.

Do you have pre-written email templates you use? Share your ideas and join the conversation by leaving a comment (if you’re reading this in an email, click on the article title to be taken to the page and comment form).

Copyright © 2007 by Tammy Lenski. All rights reserved.

Using Email In Couples Counselling (11/20/07)
Colin Rule

Great new article from ADR pioneer David Hoffman on Mediate.com today. From the conclusion: "Because email is such a new medium {...}the techniques for successful communication via computer may be less intuitive and require more conscious attention...
 
Experience suggests that there is considerable potential in email communications for both misunderstanding and enhanced understanding. As Collaborative Practitioners, we have the added benefit of working on cases with colleagues who join forces with us in trying to achieve higher levels of understanding in all of our communications – in person as well as in cyberspace. By adding more effective email communication to our toolbox, we can achieve higher level of collaboration and thus better results for our clients."
 
I think this is a watershed moment, when leading "face-to-face" dispute resolution practitioners are writing articles that could have been written by ODR practitioners just a few years ago. Jim Melamed always said that one day in the future, if you squinted your eyes just a little bit, ODR and ADR would become indistinguishable. This article is an indication that the day may have arrived where that is becoming true.

Communicating Collaboratively in Cyberspace: What Couples Counselors Can Teach Dispute Resolvers About Email (11/19/07)
David A. Hoffman
Mediators and Collaborative Practice (“CP”) professionals receive training in communication skills, but that training typically involves in-person communications. In a world where email is beginning to replace much of our face-to-face and telephonic communication, there is a need for training that addresses email communications. The purpose of this article is to begin to fill that void in training by examining some of the ways in which e-mail communication differs from other types of communication. In addition, the article will explore the lessons we can learn from mental health professionals about how to communicate more effectively using electronic media.

Who searches the internet for information about mediation? (11/13/07)
John Windmueller

Microsoft has an intriguing tool in development that predicts the demographics of different search phrases. For example, what are the predicted demographics of folks searching for the term mediation?

Here’s what the tool reports:

And here’s how the demographics compare between those searching for “attorney” versus those searching for “mediator”:

The data that fuels the prediction comes from MSN Search statistics. In addition to giving the predicted demographics of search phrases, it also will give you the predicted demographics of individual websites.

The Online Media Workshop Highlights, ACR Phoenix 2007 (11/06/07)
Gini Nelson

Here are my notes for the presentation I made last Thursday at the ACR conference — just notes; you’ll have to go to the links for more information. (Oh, and I must confess that I may not recall all that we talked about, because we had a very lively, interactive discussion!)
October 2007 ACR/Phoenix Wikis and Podcasts and Blogs, Oh My! HIGHLIGHTS
Gini Nelson, MA, JD

This isn’t a “how to”, so much as an overview of some of what I have tried in the past 1 and 1/2 years (and I have tried alot!) and what I’m working on now.

What a blog is, what a blog’s component parts are, how to search within it, how easy it is to write a post:

• Gini Nelson’s Engaging Conflicts blog

Engaging Conflicts Today (emailed newsletter associated with the blog, as vehicle for professional and business development):

• http://engagingconflicts.com/index.php/archives/115 (Ken Feinberg interview announced)
• http://engagingconflicts.com/index.php/archives/317 (U.S. Magistrate Judge Wayne Brazil interview announced)

What’s right for you (really important question)? Static, brochure-like website? Blog (and note how many different templates there are for blogs)? Something with elements of both (and/or more)? Examples:

• Engaging Conflicts (pure blog)
• My Working It Out (static website with an inserted blog)
• Handling Conflict (blog with inserted, static pages –see the testimonials linked to from the page “What they say about Gini”)
• ___________ [Well, this is a link, but the fact is that my pure static, brochure-like website is still not created, even though I have been paying full hosting fees for more than 4 years! But it –really!– is coming soon…. And, guess what! It WON’T be a pure static, brochure-like website. It will have an inserted blog.]

Gmail and Google Apps, and some other online services

• I am currently using 5 unique gmail accounts, and use google documents (which I can have others work on, too), and together with other applications that let me work from anywhere I can access the internet, from any computer, because the services and data are all online at Google. (I also have email accounts elsewhere, and use other online services. Yes, it can bealot to keep track of!)
• google.com
• comapping.com (collaborate brainstorming online)
• Time59 (online timekeeping and invoicing)

Oh, no! There’s that crazy rabbit again!

What about wikis?

• I’ve started setting one up at pbwiki.com: Engaging Conflicts Wiki
• I just set it up… and it doesn’t have much there yet. Any ideas? Want to participate?
• And here’s a new one sponsored/organized by the folks at the Werner Institute for Negotiation and Dispute Resolution at Creighton University School of Law: ADRwiki.com

And podcasts? Videocasts?

• I’ll be setting up podcasting at Podango, a “podcasting station” that will host your podcasts for free

• Videocast at mediationvblog.com

• Such as for educational purposes
• Campus-adr Weblog
• Conflict Learning Audio

Professional and business development?

• Check out Cyberweek programs, sponsored by the U.Mass National Center for Technology and Conflict Resolution. One line of programs are put on through Denver attorney/mediator/techie John DeBruyn’s Cyberweek portal:
• CO ADR Online
• see the upper left corner for some of this year’s programs, and search my blog for posts about its programs, too. This year was the 10th annual Cyberweek.
• Taking Peacemaking Public has an audio clip you can listen to at the coadr site
• here’s my blog post with the TPP program’s highlights

• Yugma: Free Web Conferencing (link: https://www.yugma.com/index.php)

And next? I’m a new resident at Second Life — look for my upcoming podcasts from there! (Hint: my name there is Genevieve Janick.)

I could go on… the web is endless and endlessly stimulating. It’s no longer a question of “should” you understand it, “should” you do something with it. You already do (who doesn’t use email?); you are using it more now than you did a year ago, most likely (are you breathing?); and it’s just a matter of time until professional and business development will not work well for most of us unless we are there. You can spend a little or a lot and everything in between, so be careful. Think about what you want to do, what resources you have (time, money and energy), use your resources focused on your priority goals, and… have fun!

Jim Melamed is 2007 Recipient of ACR John Haynes Distinguished Mediator Award: A Tribute and Lament on the Field of Mediation (10/23/07)
Robert Benjamin
Writing this tribute to Jim Melamed is an honor, even if a troubling one. On the one hand, there could not be a more fitting recipient for this particular award, named for John Haynes, than Jim Melamed, the CEO and co-founder with John Helie of Mediate.com. The work for which both the recipient and the namesake of this award are known highlights what has been most compelling and important about the field of conflict mediation. On the other hand, this award can also not help but highlight the ebbing of the energy that first gave rise to mediation practice and a falling away from some of the first principles. What John Haynes was, and Jim Melamed continues to be, is a tireless entrepreneur doing the critically important work of selling mediation in a culture that does not exactly welcome the idea of negotiating differences with open arms.

Telephonic Mediation Efficiently Resolving UK Personal Injury Claims (10/17/07)
Keith Seat

Seeking to mediate high volumes of personal injury claims by telephone, London’s InterResolve Group has completed a six-month pilot project with AXA Insurance. With mediations typically lasting less than an hour for both liability and damages issues, InterResolve reports an 88% settlement rate and an average cost of £175 per party. Matters were resolved in an average of seven weeks with mediation, compared to 18 months using existing claims processes.

Legal & Medical (October 8, 2007); InterResolve

Misinterpreting Email Communications (10/16/07)
Colin Rule

Daniel Goleman in the 10/7 NYT: "We were having an e-mail exchange about some crucial detail involving publishing rights, which I thought was being worked out well. Then she wrote: “It’s difficult to have this conversation by e-mail. I sound strident and you sound exasperated.”
 
At first I was surprised to hear I had sounded exasperated. But once she identified this snag in our communications, I realized that something had really been off. So we had a phone call that cleared everything up in a few minutes, ending on a friendly note.
 
The advantage of a phone call or a drop-by over e-mail is clearly greatest when there is trouble at hand. But there are ways in which e-mail may subtly encourage such trouble in the first place.
 
This is becoming more apparent with the emergence of social neuroscience, the study of what happens in the brains of people as they interact. New findings have uncovered a design flaw at the interface where the brain encounters a computer screen: there are no online channels for the multiple signals the brain uses to calibrate emotions.
 
Face-to-face interaction, by contrast, is information-rich. We interpret what people say to us not only from their tone and facial expressions, but also from their body language and pacing, as well as their synchronization with what we do and say.
 
Most crucially, the brain’s social circuitry mimics in our neurons what’s happening in the other person’s brain, keeping us on the same wavelength emotionally. This neural dance creates an instant rapport that arises from an enormous number of parallel information processors, all working instantaneously and out of our awareness.
 
In contrast to a phone call or talking in person, e-mail can be emotionally impoverished when it comes to nonverbal messages that add nuance and valence to our words. The typed words are denuded of the rich emotional context we convey in person or over the phone.
 
E-mail, of course, has a multitude of virtues: it’s quick and convenient, democratizes access and lets us stay in touch with loads of people we could never see or call. It enables us to accomplish huge amounts of work together.
 
Still, if we rely solely on e-mail at work, the absence of a channel for the brain’s emotional circuitry carries risks. In an article to be published next year in the Academy of Management Review, Kristin Byron, an assistant professor of management at Syracuse University’s Whitman School of Management, finds that e-mail generally increases the likelihood of conflict and miscommunication.
 
One reason for this is that we tend to misinterpret positive e-mail messages as more neutral, and neutral ones as more negative, than the sender intended. Even jokes are rated as less funny by recipients than by senders.
 
We fail to realize this largely because of egocentricity, according to a 2005 article in the Journal of Personality and Social Psychology. Sitting alone in a cubicle or basement writing e-mail, the sender internally “hears” emotional overtones, though none of these cues will be sensed by the recipient.
 
When we talk, my brain’s social radar picks up that hint of stridency in your voice and automatically lowers my own tone of exasperation, all in the service of working things out. But when we send e-mail, there’s little to nothing by way of emotional valence to pick up. E-mail lacks those channels for the implicit meta-messages that, in a conversation, provide its positive or negative spin.
 
On the upside, the familiarity that develops between sender and receiver can help to reduce these problems, according to findings by Joseph Walther, a professor of communication and telecommunication at Michigan State University. People who know each other well, it turns out, are less likely to have these misunderstandings online..."
 
I love Daniel Goleman. I spend 8-10 hours on email every day, and his dissection of the communication dynamics within it sync perfectly with my experience. I can't wait for email 2.0, with integrated video, avatars, audio, all up to the user to utilize as they see fit.

Disputes Growing In Virtual Worlds (10/16/07)
Colin Rule

The Business Shrink, October 10th, 2007: "With virtual world’s forming into the next big thing on the horizon, the real world is starting to play catch up. Traffic stats are increasing and the money pouring into virtual worlds is starting to translate into real world money that cannot be ignored. Just recently a report was released by Screencast.com, a business research and intelligence gathering company, that listed subscription sales for online virtual worlds rising to $526,000,000 in the US market in 2006 alone.
 
With all this money pouring into the virtual worlds and attention being given to these markets, entrepreneurs and business minds come alive. Just as if it were in the 1800’s and dreamers were running into the California gold rush, people are now running to virtual worlds for entertainment and business.
 
With business savvy and genius creations comes the bad side of the virtual world progression of litigation, scams and regulations. Lawsuits and discussions are rising in the area of virtual worlds and if real world laws and government regulations apply to these new worlds."
 
This is definitely a growing meme: the ugliness of the real world intruding on the utopia of virtual worlds. It builds on some of the press a few years ago about Second Life land deals going sour. I think people secretly like these stories, because they confirm their skepticism about these new environments. Interesting to see how this discussion evolves. I'd love to see Second Life grabbing the bull by the horns and introducing a wide-ranging dispute resolution approach! We'll see...

Nuevas Tecnologías de Información y Comunicación aplicadas a la Resolución de Conflictos (9/24/07)
Alberto Elisavetsky
Nuestro siglo nos presenta permanentemente situaciones paradójicas. La Globalización puede lograr que los avatares económicos de Gambia tengan decidida influencia en Bolivia, pese a que crecen y se multiplican los medios de comunicación, cada vez las personas se sienten más solas. La fragmentación del saber llega hasta límites tan increíbles que el grado de sofisticación en las especialidades parece no tener fin y a veces se pierde la noción del todo por el imperio de las partes.

More on dispute resolution in Second Life (9/23/07)
Geoff Sharp

Continuing the series on DR in Second Life...

The people behind Second Life, Linden Lab, have announced today that from hereon in a dispute resolution known as “binding non-appearance-based arbitration” is available for disputes of less than $10,000.00 between Linden Lab and the Residents in Second Life.

They describe it as "... a legally binding procedure administered by a private organization. This means that the arbitrator’s opinion on liability and damages may be entered as a final, binding judgment in a court of law. The arbitrator will conduct the arbitration by telephone, online, or based on written submissions, and the Resident and Linden Lab will not make any in-person appearance at the arbitration hearing"

That does not, of course, help with the 2,000 reports of some sort of problem between residents that Linden Lab recieves every day.

On that Linden Lab says;

"... Linden Lab received a grand total of 43 Abuse Reports during my first week of work in 2003. Jumping forward to the end of 2006, the number is closer to 2,000 per day.

On a purely clerical level, this kind of volume is not readily sustainable; to give each report five minutes of investigation and attention would add up to more than 160 hours day.

It could be done of course, but the bigger issue lies in the content of the Reports; the vast majority are either: problems Linden Lab cannot resolve (we can’t force anyone to see eye to eye with anyone else), situations Linden Lab should not resolve (neighborly property line disputes or transactional issues), and reports that aren’t Abuse Reports at all – they don’t have anything to do with the Community Standards and belong in other communications channels"

Negotiation Tip: Negotiating with Email (9/23/07)
Joshua N. Weiss
Josh discusses some guidelines for negotiating with email and how to avoid the pitfalls that plague many of these virtual negotiations.

 

MP3 File

Fellow Mediators, Help Promote Respectful Communication Online (8/06/07)
Tammy Lenski

Man vs. Machine: Automated On-Line Negotiated Settlements (8/06/07)
Victoria Pynchon

(left:  Hal from 2001, a Space Odyssey -- Open the pod bay doors, HAL. I'm sorry Dave, I'm afraid I can't do that . . . I think you know what the problem is just as well as I do. . . This mission is too important for me to allow you to jeopardize it. . . . I know you and Frank were planning to disconnect me, and I'm afraid that's something I cannot allow to happen. All right, HAL; I'll go in through the emergency airlock. Without your space helmet, Dave, you're going to find that rather difficult. HAL, I won't argue with you anymore! Open the doors! Dave, this conversation can serve no purpose anymore. Goodbye).

Charlie Brofman, the CEO of CyberSettle, started his legal career as a criminal prosecutor in the Bronx and ended it as a civil trial lawyer in New York City.

Then he engaged in two activities so contrary to the stereotype of a New York City trial attorney that you feel you've entered the Seinfeld episode with Bizarro Jerry and Kramer and George.    

First, Brofman went into business with opposing counsel.  Then he chose algorithms over stare decisis. 

Math????

Yes, numbers, ladies and gentlemen.  Algebraic, trigonometric, calcuanalytic maddening mind-numbing numbers.  The entire reason most lawyers go to law school in the first place.  Because they can't do math.

So, this extraordinary New York trial lawyer cooperated with the opposition and launched CYBERSETTLE, a company that now helps thousands of math-challenged lawyers and their clients settle more than ten thousand "pure money" cases a year. (see Geoff Sharp's recent post on the same topic here)

How Does Cyber-Settle Work and Will It Put Lawyers and Mediators Out of Business?

Even a mathophobic such as myself can easily understand and use the CyberSettle system.  Here's how it works (unless, of course, I'm wrong; in which case I'm counting on Charlie to correct me). 

You've got an auto accident case and a 15/30 policy.  We'll make it easy with a single injury -- soft tissue -- and $5,000.00 in medical specials.  Liability is 50-50 and, well, you do the math for the probable jury award were anyone taking cases like this to trial anymore.

Plaintiff's counsel and the insurance carrier (with or without counsel) each submit three blind offers (online) and agree that they will "split the difference" if any set of those three numbers comes within $2,500 of the other's number.

No one but the offeror will ever know what these figures are, not even CyberSettle, unless the parties:  (1) settle automatically online; or, (2) authorize the disclosure of the numbers for the purpose of working out a deal -- possibly with one of the neutrals with whom CyberSettle contracts to mediate the settlement.

As you can see, the automated system works a little like a mediator's proposal (the double-blind offers) without the mediator making a proposal.   

Give Us An Example

Say the Plaintiff's demands are policy limits -- $15,000 -- then $12,000 and finally $10,000.  The insurance carrier's are $2,500, $5,000 and $8,000.

The algorithm will compare the first two numbers against one another -- $15 and $25.  They don't match and they're not within $2,500 of one another.  The computer program will move on to the next two numbers.  Once again, $12,000 and $5,000 are neither a match nor within $2,500 of each other.

Finally, the computer hits the parties' Zone of Potential Agreement (the ZOPA). Plaintiff is willing to accept $10,000 or split the difference between eight and ten. The carrier is willing to pay $8,000 or split the difference between ten and eight.  Voila.  The case settles for nine.

Will This Take Business Away from Mediators?

My answer to this question is -- I sure hope so. 

Why? 

Because these are the kinds of cases that don't require face to face (or phone to phone) negotiation, let alone third-party facilitation by a mediator.

I am informed that more than 100,000 lawyers have used this system, including many name-brand insurance companies.  I'm also informed that CyberSettle facilitated the settlement of somewhere between 12,000 and 15,000 cases last year and sent another sizable group to live mediators when the parties authorized CyberSettle personnel to take a look at the bidding to determine whether they were "close enough" to warrant human follow-up.

But don't think this service is only for the slip and fall at your local Ralph's or the 15-mph fender bender at the corner of Merchant and Main.  Recently, two litigants settled a case that had been in litigation for eighteen months for $12.5 million in eleven minutes using CyberSettle.    

The average settlement, however, is in the numeric range you'd expect it to be, between $10 and $20,000 with an average fee paid to CyberSettle of $210 per case.  

I like it.  If the parties with these smaller can can use an on-line bidding system without filing suit or, if the case is litigated, before much money is spent on litigation, it could speed money to those in need and reduce expenses for all concerned.

I'll begin worrying about losing my day job to a computer when they make one that can understand the Rule against Perpetuities. 

Until then, god speed CyberSettle.