I do my best to stay on top of the phenomenon and evolution of mediation. How is mediation growing and changing in the US and world? If one looks toward the future with an open mind, it is mind-blowing to consider where mediation may be going.
Mediation is different things to different people.
The first thing we need to appreciate in thinking about the future is that mediation is different things to different people. For most participants, it is a means to an end: resolution. For mediators, it may be a satisfying and challenging occupation. And for courts and agencies, mediation may primarily represent a means of managing expanding dockets on tightening budgets.
For Practitioners, mediation at its best represents a satisfying opportunity to assist others to most capably resolve their own situations. For those mediators who professionally “make it,” there is the great feeling of making a living while doing good. Numerically, most mediators are actually volunteers, usually associated with community programs and are not paid at all. Community programs offer heroic service and typically operate on shoestring budgets. Historically, the most motivated community mediators often moved into the “professional ranks” (charging fees for service). Of late, however, it seems that the private mediation market has shifted more and more toward the legal system and, increasingly, attorneys bring their talents to the mediation profession. This includes the increasing “panelization” of the field (private panels like JAMS and AAA) as well as court, agency and practice area panels. The field of mediation is really now closer to “100 fields of mediation” as our work has “Balkanized” into new and exciting practice areas such as elder, foreclosure, mass disaster and marital mediation. This growth and innovation in mediation tends to take place in the private sector as creative and entrepreneurial mediators consider new conflict areas that can benefit from mediation’s solution-focused approach to conflict.
For Participants (disputants), no matter how well-intended mediators may be, mediation is like going to the dentist (except that mediators do not offer pain killers). Mediation for participants is realistically a choice of evils. No one really wants to go to mediation. People would rather be working, caring for their family or doing something fun. Yet, people go to mediation for one simple reason: the alternatives are even worse. The leading options are no resolution or court. People do not want to be in mediation no matter how nice, creative and effective a mediator you are, even if you serve warm cookies. They want to move on and to have things be better. People do not like conflict. People do not share mediators’ zeal for the mediation process. People want a fair result as quickly and inexpensively as possible. As we think about mediation services and systems in the future, it is important to remember that mediators and the mediation industry remember this driving force for participants: “a fair result as quickly and inexpensively as possible.”
For Courts and Agencies, mediation has been primarily an issue of case management. Judges were selected or elected to “judge,” not mediate nor coordinate mediation programs. From a perspective of docket management, courts and due process agencies recognize their need for mediation (assisted voluntary settlements) to manage their caseload. If more cases can be settled through mediation at earlier and earlier points and at lower and lower costs, fantasic. Mediation ultimately is what allows courts and agencies to deliver due process consideration to those cases most needing it (and helps courts balance their budgets).
Our “Day in Court”
Closely examined, “adjudication” in America is far more myth than model. Sure there is the iconic courtroom battle and appeal to the Supreme Court for “justice.” However, as a matter of day-to-day living, the courts are largely irrelevant for most of us. When courts are engaged, most people fear them. Most of court time is spent on criminal and domestic relations matters. In terms of providing satisfying and timely resolution of civil and commercial disputes, satisfaction rates with courts are not high.
Legal representation is also more myth than model. Even in situations like divorce, a necessarily legal event, in California today only 20% of those getting divorced have even one attorney involved in their case! Why? One dominant reason: cost! Only 20% of Californians faced with the intrinsically legal event of divorce can afford the over $10,000 per party average cost of divorce legal representation. Ask any family how much they have budgeted for legal services? People may not be drawn to mediators, but they are even less drawn to expensive attorneys and courts.
In the Federal District Courts, there is discussion of the “vanishing trial.” Most recent statistics show only 1.2% of filed cases are actually tried to a judge or jury. While one might applaud such settlement statistics, the reality is that people settle because they are burnt out, exhausted and broke. In the federal courts, we have the most righteous “cream of the crap” litigation, where people have hired legal counsel at great expense to “sue the bastards.” Even in this most vitriolic context, 98.8% of the cases settle. So much for our imagined “day in court.” Even when people pay the big bucks for legal vindication, there is at least a 19/20 chance that they will in fact end up settling. Would people file lawsuits if they knew this? Is there some other way we can catch the other side’s attention?
In reality then, we really have a settlement system far more than a litigation system (in spite of all the dust in the air). In this context, perhaps it makes sense to ask the question: What would be our best possible settlement system?
The problem with our current legal system is then not that there is too much litigation or that not enough cases settle. The issues are: 1) when in time do cases settle; and 2) what is the quality of those resolutions? And perhaps it is worth asking: Did those situations need to become “legal cases” in the first place?
Mediation, whether a part of or separate from court or agency jurisdiction, offers disputants the opportunity to dramatically reduce their costs (delay, money, stress, relationship) and has been shown to double the likelihood of full compliance with agreed-upon results (compared to judicial orders or attorney settlements). People are in control in mediation. Nothing can be imposed on them. Mediation offers the opportunity for most capable discussions and most capable solutions, rather than barely sufficient discussions and barely sufficient solutions. Even among those that do not reach agreement in mediation, over 90% still recommend the process to a friend in a similar situation. Mediation has rapidly become the “day in court” we perhaps never really had.
Do We Need to Sue? Getting the Other Side to Pay Attention
One thing I hear often is “we need to file the lawsuit so the other side will pay attention to us.” The lawsuit acts as a sort of glass of ice water we throw in the other side’s face. Kind of hard to ignore a glass of ice water in the face! So, it is sometimes suggested that mediation can only happen when a party has so effectively captured the other’s attention with a formal court filing conferring jurisdiction on the court.
While there is clearly a good measure of truth to the fact a legal action does catch the other side’s attention, I would not be surprised to see this approach change appropriately change in the future.
Let’s get creative for a moment. Knowing that all court options remain in the background, we might imagine a new system where a court or community program might establish “mediation jurisdiction” – perhaps not formal authority but socially compelling authority to encourage people into mediation.
Or maybe web sites will develop where one can (publicly) “threaten to sue” another. Such web site might, for a price that is a small fraction of a court filing, post a public notice of an “Intent to Sue” (including an abstract of the claim). Such posting might be held in abeyance during a 30 or so day period (perhaps the time would be set by the one who posts the notice?) while the other side is given an opportunity to work things out, be that online or in person. An email might be sent to the other side saying something like:
“I am planning to sue you for (describe circumstances) unless we can reach a mutually acceptable resolution within __ days. To help achieve this desired resolution, I am willing to _mediate; _arbitrate; _ and to do so _face-to-face or _online, and I will contribute __% toward such resolution fees. Please promptly respond letting me know if you are also prepared to so effectively work toward resolution without our needing to file our lawsuit against you.”
If the other side is not willing to so work toward resolution (or perhaps if no resolution is achieved), then it might be that the website “threat to sue” would be posted for some time for the public to note. Just as people do not like word of a pending lawsuit against them to get out, my guess is that people would not like word of pending “threats to sue” to become known. Just an idea. It is a new world. “ThreatToSue.com” is now taken.
This further informs our consideration of ways mediation can grow in the future. What mediation does effectively is to expedite discussions and improve the quality of settlements. We effectively move statistically predictable settlements to an earlier point in time, saving money, untold stress, limiting the damage to relationships and creating better, if not best, results. We may, in fact, be able to move many of such resolutions out of what we have traditionally understood to be our “legal system.”
What does all this mean about our relying on courts and due process agencies for the delivery of mediation services? Should the filing of a lawsuit or due process complaint (legal jurisdiction) be the public’s ticket to mediation services? Why in the world (other than catching the other party’s attention) should the filing of a lawsuit be needed or desired as the first step to settlement? Why legalize and polarize only to bring people back together? Might we catch the other’s attention and induce participation in some more constructive and less expensive way?
The Biggest Conceptual Issue for the Field of Mediation
To What Extent Within – To What Extent Beyond the Traditional Legal System?
I was doing some reading on the development of mediation in Denmark. I am going to Copenhagen in the fall and thought it would be interesting to get a bit of background information and perhaps make a contact or two. And so, in researching mediation in Denmark, I found that this concluding comment rang so very true for the development of mediation in the U.S. and perhaps in all countries:
“The development of mediation in Denmark will depend on whether it is viewed by policy makers and practitioners as another set of pre-trial settlement procedures or rather as a altogether different system of quality dispute resolution that exists alongside the existing court structure.”
(Mediation in Danish Law: In Retrospect and Perspective” by Vibeke Vindelov, Professor of Law, University of Copenhagen)
While this is somewhat an oversimplification, it is so helpful for us to examine the nature of our systems for the delivery of mediation services. Is mediation in the United States to be defined as a “pre-trail settlement procedure,” or as part of an “altogether different system of quality dispute resolution that exists alongside the existing court structure”? Or, perhaps, both?
Is the future of mediation that it is little more than a judicial due process settlement device? If so, how did this happen? Has our legal system come to swallow mediation?
That we are even asking this question is a bit ironic in that, when the modern era of mediation began in the U.S. in the late ‘70’s, courts and attorneys did not generally welcome mediation, if only because it represented change. Now the concept of someone other than an attorney mediating a situation is quite foreign to attorneys.
And, if we are honest about the situation on the ground today, when it comes to “mediating the litigated case,” it can accurately be said (perhaps with 98% accuracy) that attorneys have come to almost completely dominate the “legal mediation marketplace” (at least those cases that pay). Despite any initial hesitations about mediation, attorneys and courts now commonly recognize that, “hey, if mediation is to take place and legal issues exist, it likely makes sense to have an attorney mediate that case.” Needing to tie all the legal strings together with legal drafting further convinces everyone involved of the need for an attorney mediator. In situations where people are represented by attorneys, all of this is fortified by representational attorneys (rather than end user disputants) commonly making the selection of the mediator.
To be honest, perhaps as I am an attorney, all this does not bother me that much. It can in fact be effectively argued that, if folks have somehow come to find themselves in a legal context, it does make sense to have the “most capable” mediator and one with a legal background and legal drafting ability may well fit that description.
Still, one can just as surely ask whether the situation really needed to be filed in the courts and be legalized in the first place. The “legalization of the mediation” is further reinforced and dramatically impacted by attorney scheduling needs and what seems to be an unconscious adoption of a “hearings” mentality for mediation. Mediation in the legal context is now too often “crisis,” one-day, single-sit mediation, as if it does not make sense to let the parties and advisers think about things overnight or for a week or two.
If we had a more capable mediation model, we might have the option of two or three meetings (or whatever is needed) available to participants, perhaps on separate days with time in-between for the mediator and others to electronically communicate to further the discussions. With a bit of creative thought, it might be that we could come up with far more capable, less stressful mediation options where people could get their desired legal guidance between sessions as much as at sessions. Even during a session, a cell phone call or two can go a long way at a small fraction of the cost of a day of legal representation. If there is time for participants to communicate with legal and other advisers either at a mediation or between sessions (email, text, phone), we can elevate participant capacity and save substantial and unnecessary legal fees.
If only because of the costs of attorneys and legal filings, it is almost certain that mediation will continue to grow beyond our courts. There are in truth many points during a dispute cycle where mediation may make sense and we should encourage and respond to resolution impulses whenever they exist. We would, however, be making a huge mistake to exclusively rely on courts and agencies (requiring legal filings for jurisdiction) to be the exclusive delivery system for mediation services. Without powerful creative private sector and widely available community mediation initiatives (that do not require adjudicatory filings), we are, however, at risk of the legal system swallowing mediation.
Shifting National Culture – Funding Community Mediation
Our family recently experienced the value of community mediation. Our situation involved neighbors one of which was building a large house. The complaints included the hours of construction, barking dogs, dust, parking, and, in time, harassment and assault. We got involved as the neighborhood started to take sides. We were lucky to have an available and effective community mediation program to call upon. Swift mediation literally saved our neighborhood. And, unbelievably, it did not cost a penny. If we would have needed to figure out who paid for what part of the mediation, this neighborhood saving initiative would never have taken place.
There are thousands, if not millions, of stories of community mediation helping individuals, families, neighbors and entire communities. Still, somehow, “in the richest nation on earth,” we have not seen fit to reasonably fund community mediation. In fact, the lack of funding for community mediation is an embarrassment that I am personally tired of participating in. How dumb can we be? We need leadership on this issue and we need this leadership now! President Obama, are you paying attention?
In one single move, the President and/or Congress could shift American (and perhaps world) consciousness about mediation. A quick Google search reveals the reported cost of a B2 Bomber to be 2.2 billion dollars. An equally quick review of the National Association for Community Mediation web site (www.nafcm.org) reveals 948 organizational members (programs). For ease of math, let’s call it 1,000 community mediation programs in the U.S. My quick calculations indicate that, if the United States builds one less B2 bomber, we can fund each and every community mediation program in America with $100,000 per year for 10 years. Will you join me in making this happen?
I also get excited when I think of community mediation programs being supported to harness the administrative and communication capacities of the Internet. More capable use of the Internet will allow community programs to become known, provide education, better administer services, and better offer a variety of convenient communication modalities. With so many common needs, it seems foolish that we would find these answers program by program. A measure of integrated development clearly makes sense. To the extent we need to communicate with numerous participants at low cost, enhancing community mediation operations with a most capable technical infrastructure makes abundant sense.
These are the kind of activist political goals that the mediation community may wisely consider. It can be argued that the mediation community would be wise to demand that our political leadership make mediation available without the need to see lawyers and file lawsuits. Intriguing is whether mediators will become activists and advocates for responsible funding of community mediation services. While some may suggest that mediators should be “neutral” in all things, argument can be made that mediators removing themselves from such policy debates robs our society and the world of one of our most valuable social voices.
A Unique Mediation Quality for the Future: “Scalability”
When I note the “scalability” of mediation, I mean one thing, which is that mediation is the only leading dispute resolution process (consider adjudication, administrative hearing, arbitration, mediation) where “some measure” of assistance can be offered. We can offer you 20 minutes or 2 hours or 2 days of mediation . . . it is “scalable.”
By contrast, if you are a court or agency and need to meet “due process” standards, one cannot offer “some measure of due process.” And in arbitration, with the same adversarial model and disputants waiving their appeal rights, the stakes are often even greater. Severely expedited arbitration hearings are receiving harsh scrutiny in the marketplace these days. In contrast, with mediation, people don’t complain when they come to a voluntary settlement.
In contrast to the process requirements, time demands and stress of due process and arbitration hearings, mediation is rather remarkably flexible. This was brought home to me recently when I taught an advanced mediation course and I had “court facilitators” that mediated with families for about 20 minutes on average; court-connected parenting mediators who mediated for about 2 hours on average; private sector mediators who would deal with all issues in a divorce and meet with couples on average 8-10 hours, and “settlement judges” who would meet with just the attorneys (clients in hall) for 15-30 minutes “mediating” a result in anticipation of a scheduled trial the following week.
This and other experiences have come to make me realize that mediation is the one process where we can offer “some measure” of negotiation assistance – So, a community or court mediator may say: “We’d love to provide 10 to 20 hours of mediation, really whatever it takes for you to reach your best agreement, but, in our program, unfortunately, we can only offer an hour . . . so why don’t we get going and see what the best is that we can do in an hour . . .” In part, this is a reminder of the underfunded nature of court, agency and community mediation programs. Perhaps even more important for the future, note this remarkable time flexibility (“scalability”) of the mediation process.
The scalability and flexibility of mediation is also important in that assumptions about available mediation resources has a powerful impact on mediator style and strategy. Simply put, the shorter the presumed available time for mediation, the more directive the mediator and mediation program tend to be (to get the job done). If we have more time, or think about mediation time in different ways (for example more capably using the internet), we may also find that we as mediators can be less directive and more facilitative in helping disputants lead their own problem-solving.
The Adaptability of Mediation Services
In thinking about the future, we would be remiss to not consider the remarkable flexibility of the mediation process and our ability to adapt mediation to new contexts in new and creative ways.
As an illustration, highly effective mass casualty claim mediation programs were developed in a short amount of time in response to hurricanes Katrina, Rita and Ike. This is now a working model and we can expect bigger and better “mass disaster mediation” programs in the future.
Somewhat similarly, with the housing and economic crisis, we have the emergence of “foreclosure mediation” programs. These programs are already established in approximately 20 states and the just completed U.S. Mayors Conference has called for foreclosure mediation in every state!
In these situations, because of the caseloads, cost and delay that would be involved, traditional legal and adversarial processes simply will not work. What is needed is a measure of (sufficient) facilitative help and mediation has provided the answer.
As another example, we see the recent development of “Marital Mediation.” Recognizing that conflict also exists even when couples decide to stay married, there is now a vibrant new service in the marketplace to provide couples with assistance in reaching and memorializing their agreements. And I would guess that mediation for ongoing “non-traditional” relationships can not be far behind. Through commonsense and increasing awareness, mediation is spreading to nearly every nook and cranny of life.
Communication in the Future
Thanks for bearing with me to this point. If you have not jumped out of the boat yet, please do prepare to now get at least a little wet as we plunge over the edge. I try to wrap my head around future communication and mediation issues on a daily basis, yet I consistently fail and underestimate how much things are changing. So, I warn you that there is immediate and meaningful risk that we will now blow some of your mental circuits with the rest of this paper. You are hereby duly warned and advised to not continue.
You renegade! Come brothers and sisters into the future with me. Remarkably and paradoxically, as we now look back, it was courts and agencies, driven by efficiency and economy concerns, that have driven dispute resolution online. This began with online due process filings, motions and orders. The there was the swift move to “the paperless courthouse.” Discovery in now done online except by online judicial order. Hearings are now fast-tracked by asynchronous online video. The reasons for requiring warm bodies to be brought down the courthouse are becoming fewer and fewer. Excess courtrooms are being used for daycare and jail cells.
Mediation has also changed, sometimes overnight. I remember that the way that I mediate divorce changed overnight with the emergence of an online state child support guideline center complete with child support calculator and “what if” abilities participants can easily use. Now, my first mission is to assist clients to find this location and work through their own calculations. And there is now a rather remarkable online parenting plan center, including all of the statutes, regulations, information about developmentally appropriate parenting, model parenting plan provisions (a shared knowledge base of what has worked for others) and more. Overnight, the way that one reasonably and best mediates divorce changed.
Even today, without even thinking much about it, we commonly attach important documents to emails (draft provisions and agreements) for participants and attorney review. Many of us already use the Word feature called “track changes,” which is as effective a “one text document” technology as I can imagine. By using of email, attachments and track changes, we are all “online mediators” as we assist participants and advisers to be actively involved in the drafting process. And with Skype, we can discuss all these documents from the far reaches of the earth, with multiple participants, for free! Today!
There is also increasing recognition of the value of “asynchronous communication.” Easier to understand perhaps is “synchronous communication,” such as an in-person interview or phone call. Asynchronous communication (think email or leaving a voice message that you can edit) means that the listener or viewer is not present in real time so, bottom line, we don’t have to necessarily get our communication perfect the first time. We can edit our asynchronous messages until they are as good as they can be. We can re-record our voice message. We can size and crop our photo. We can tweak our texts and instant messages until they are as perfect as we can make them, and then hit the send button when “we are at our best.”
We have long recognized the benefits of asynchronous communication in mediation. This is perhaps the biggest reason we caucus with participants. While we as mediator are synchronous with the individual party in caucus, the participants themselves (and their attorneys) are kept asynchronously at a distance. This allows us to better discuss with each side in private their next contribution to the overall negotiation discussions. Through caucus, we delay each side’s offer or response until that communication is as highly crafted and as likely to succeed as possible. Asynchrony (think email, attachments, voice messages, web sites, texting, instant messaging) is the mediation industry’s new best friend (our best new friend since the word processor). Asynchrony, allows everyone associated with the mediation, the mediator, participants and attorneys, to be at their best, as opposed to at their “first.” Asynchrony allows us all to be more thoughtful, better informed and more effective in conflict resolution.
And Asynchrony and electronic communications may be what allows courts, agencies, private and community mediation to move beyond tense and expensive “single sit” crisis mediation hearings to more capable discussions over time.
For example, many participants in mediation really do not need their attorney there with them for 8 or 10 or 12 hours in a single day. If we can more wisely structure our mediation efforts, integrating both face-to-face dialogue and electronic communications, we can offer far better mediation and dispute resolution services at a far lower cost. My sense is that mediation will in time become as much an asynchronous process as a synchronous process and we will be freed from continuing worship of the single-sit mediation. Our goal should perhaps be to flexibly and capably integrate face-to-face and electronic communications to provide best overall negotiation support.
Also fascinating is how email addresses have become the most ubiquitous way of communicating. A person is far more likely to have an email address than a street address. Just ask any homeless person. Even the poorest of the poor will generally have a free yahoo or hotmail or gmail account. They can use library and other public web access to check their email, complete web information and to even have voice and video communication with the far reaches of the earth for free. So, in terms of communication with the masses, what used to be “the digital divide” has become our “least common denominator” for communicating with adults in our society.
In sum, meditative dispute resolution is about to take off in part because of the costs, delay and stresses of litigation; in part because of the risk and controversy over institutionalized arbitration; in part because of the empowering qualities of mediation (voluntary, complete decision-making, confidential); all supported by such qualities as scalability, adaptability, asynchrony and nearly all of us now being “on the same computer.” These forces may combine to result in an explosion of mediation opportunities and also in the transformation of mediation communication and services.
Mediation In Your Pocket
Unbelievably, all of the communication options we have discussed above are already available to many dispute resolution users, surely “power users” (lawyers, judges, arbitrators, mediators). Even more remarkably, it is all now available in our pockets and purses.
While I don’t want to get behind any particular product, and the marketplace is coming along quickly on new generations of “smartphones,” let’s use the iPhone as an example of how mediation services may come to be delivered in the future. The iPhone. OMG! If someone described the capacities of the iPhone to you 10 years ago, they would have been put away for sure.
So, all of those communication modalities we have talked about so far: text, image, audio, video, are now right in your pocket. Synchronous and asynchronous too. Of course. Phone, email, web, music, camera, photos, weather, calculator, instant message, calendar, notes, maps, timers, comnpass, skype, video, twitter revolutions and all . . . EVERYTHING and expanding. If all this ever gets scary, just do the “Around Me App” on the iPhone and the phone will tell you what is around you (it can see better than you). And if you lose the phone, you can now go to your “cloud web site” and have the phone tell you exactly where it is.
Further, whereas a phone number used to be to a physical place, a phone number is now, most commonly, to a person (more accurately their pocket or purse). This “personalization of phone numbers” will surely change how we mediate. It already has. We can now text the client to see if this is a good time to talk. Or we can text and say we have just sent an email with an attachment and links for them to review. And all this is happening 365/24/7 on a global basis.
More of my circuits are blown when we consider that certain disputes will (necessarily) be resolved exclusively online. The largest dispute resolution system in the world is at eBay. eBay has developed a really smart robot that resolves about 85% of their disputes (millions per year). All of the domain disputes have been resolved online. CyberSettle has developed a rather effective blind bidding process that is making them millions. AAA, JAMS, ICC, WIPO . . . you name the international dispute resolution organization . . . they are all now getting into the “online game.” They see the future. They are not dumb.
Richard Susskind, lead technology consultant to the UK Courts, has described a number of the changes that are taking place in his recent book: The End of Lawyers?: Rethinking the Nature of Legal Services (2009), A review of Susskind’s book describes:
“a world in which, at least in part, legal services are commoditized, IT renders conventional legal advice redundant, clients and lawyers are collaborators under the one virtual roof, disputes are dominated by technology if not avoided in the first place, and online systems and services compete with lawyers in providing access to the law and to justice.”
So, the first challenge is for face-to-face practitioners and processes to most capably integrate online and other electronic communication technologies. They all fit in your pocket for gosh sakes. There is also a different world when we mediate exclusively online. In some of these circumstances, it even becomes a bit challenging to think in “geographic” terms in terms of jurisdiction, law, even professional licensing. If we are professionals operating online, in one place, but serving people in other states and countries, where are we practicing? We may be moving to new concepts beyond traditional concepts of geographic jurisdiction to a new world of “Trusted Online Communities (TOCs) and “Digital Identities” to create trust and agreed-upon, predictable dispute resolution processes where a part of the ethos of the community may well include accountability for resolving conflicts. For more on this topic, see the excellent paper by Jeff Aresty: “Digital Identity and the Lawyer’s Opportunity for Furthering Trusted Online Communities” at www.internetbar.org.
Again, perhaps most mind-boggling is that all of the technologies described are already here today. The only barriers to growth and development are our own creative limitations. While we may look with nostalgia at early romantic notions of face-to-face (synchronous) mediation, there have been some real problems with this model. Let’s start with cost and access. In many cases, the proper comparison for online mediation is not this romanticized idyllic mediation (as much time as it takes), but, more likely, no available or affordable mediation services at all. The online environment is going to allow us to bring quality mediation assistance to the far reaches of our society and the globe. The online environment can bring mediation to people and situations that have never been able to access or afford any meaningful dispute resolution process.
Additional Likely Trends: Emissary Mediation, Education & Empowerment; Real Time Involvement
As dispute resolution moves more and more online, content submission (be it text, image, audio and/or video) will be more and more user driven (asynchronous, convenient, edited at best, generated without taxi meter running). Missing will be the mediator’s acute ability to note non-verbal indications of acceptability and resistance. The thing that is admittedly hard to do mediating online is what I call “simultaneous problem-solving.” The communication systems just are not responsive and flexible enough for us to intervene effectively in real time. For describing process and sharing information with everyone, synchronous communication is great. But, when it comes to the heavy negotiation lifting, my sense is that mediators will more and mnore come to serve as “emissaries” of well-considered offers and responses. Think Henry Kissinger and shuttle diplomacy. Their will be less simultaneous problem-solving and more asynchronous problem-solving. I would not be surprised if online mediation increasingly has the mediator more proactively acting as diplomat and emissary.
The online environment also uniquely offers us the ability to educate and empower participants about how to best participate in mediation (everything from technical suggestions to observations about communication options, suggestions for effective negotiation, etc.) In fact, why settle for an ordinary education when the online environment allows us to do things for large numbers at the highest possible level. The online environment also can serve as a base for “emergency” services as well as links to resources and shared situation-solution knowledge bases (what has worked for others in similar situations).
With all of these communication opportunities and mediation as the best concept since sliced bread, how can we not see the future of mediation as bright? Soon we will have world class conflict resolution and mediation education and access to every desktop, laptop and smartphone. The online environment allows us to bring mediation to every pocket and purse. We are all now connected.
And just to be sure that all circuits are fully blown, our communication options may get to be so good that mediators will come to be part of live conflict situations . . . so that disputing ex-spouses may come to text a parenting mediator for real time help, or a construction mediator may help a contractor and sub-contractor resolve a matter by taking a shared tour of the construction while looking at and talking into their smartphones. For more on this topic of real time conflict involvement, see “The Future of ODR: One Brief Glimpse” by Sanjana Hattotuwa at www.info-share.org.
This is only one wild-eyed peek into the future. I hope stimulate a bit of new thinking within each reader and within the global mediation field. While it is of value to consider our roots and our current condition, that is water under the bridge. The real questions are now, knowing all we know, how can we best utilize the mediation model to further improve American and global life.
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