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<xTITLE>Creating An Environment for Mediating Disputes On the Internet</xTITLE>

Creating An Environment for Mediating Disputes On the Internet

by Richard S. Granat
September 2000
A Working Paper for the
NCAIR Conference on On-Line Dispute Resolution
Washington, DC, May 22, 1996

Table of Contents

Introduction

The Case for On-Line Mediation

The Potential Problems with On-Line Mediation

The Potential Advantages of On-Line Mediation

Building the Mediation Room in Cyberspace

Conclusion

Introduction

I first thought about titling this paper "Why On-Line Mediation?" because there is still disagreement among some practitioners about the effectiveness of using traditional mediation to settle disputes. In Maryland, the state where I practice and teach, and the locus for this experiment, family law litigators, for example, lobbied in the last legislative session, to limit court referred mediation and to limit the right of non-lawyers to mediate disputes in family law matters. The idea of mediating domestic disputes in cyberspace will seem to many Maryland family lawyers a strange idea and even less workable than face-to-face mediation.

Nevertheless, we believe that there are advantages to mediating certain types of disputes on-line, and we hope to demonstrate that mediating family and health disputes on-line will facilitate agreement between the parties, cost less than traditional mediation, particularly when the parties are separated by distance and, in the case of domestic conflicts, create a foundation for future conflict resolution after the divorce is final. We believe that there is a market for on-line dispute settlement and have this faith, perhaps naïvely, that if we build it, they (the customers) will come.

Our approach to testing the efficacy of on-line mediation is particularistic in the sense that the proposed service is limited to two types of disputes: domestic disputes such as custody, visitation, child support and property division; and health care disputes between either consumers and insurance companies, or consumers and health care device manufacturers. Only cases that arise in Maryland under Maryland law will be selected for mediation. This paper discusses our approach to family law disputes because our planning is much further along with respect to this category of conflict, than the health care disputes, and the family dispute mediation component of the project will be operational before the health care component.

The first section of this paper discusses the nature of domestic disputes, their suitability for mediation generally, and on-line mediation in particular, and our hypotheses concerning the advantages of on-line mediation over face-to-face mediation. The second section of the paper discusses our approach to creating the on-line environment in which on-line mediation will take place.

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I - The Case for On-Line Mediation

The Mediation Process

First, some definitions. Mediation is an informal process whereby two parties with or without their attorneys, sit down with an independent third person, known as a mediator. The mediator acts as a facilitator to help the parties focus on the issues and provides reasonable and acceptable solutions to both sides. Unlike an arbitrator or a judge, the mediator cannot impose a solution on either side. In mediation, a neutral third party conducts a process toward resolving the conflict between the parties that satisfies each parties interest. Through a process of communication, each party reaches a decision that satisfies both. Mediation also can be used to set up a system for settling future conflicts.

Unlike arbitration and litigation where the dispute is settled based upon rights, or negotiation, which is often based on power, mediation is based on finding out if the parties' interest can be broadened so that there is a basis for agreement. Mediation focuses the parties agreements on common interests, rather than legal rights, or the balance of power in the relationship. If the parties reach a solution it will be based on the agreement of the parties. If and when agreement is reached, it will be reduced to writing.

In Maryland, divorce mediation is designed to create an agreement between the spouses specifying responsibility for children, spousal support, and property division. The mediator doesn't make decisions for the parties or advise the parties what they should or should not on any issue. The mediator does not give legal advice, although often the mediator will provide basic legal information.

In 1988, the Court of Appeals of Maryland formally adopted Rule S73A, which provides that after consultation with counsel, Maryland courts may enter an order requiring the parties to attempt mediation in any proceeding in which custody or visitation appears to be in dispute and in which the court finds mediation appropriate. These court-ordered mediations are known in Maryland as public mediations. As a matter of course, all disputes involving custody and visitation are referred to mediation, except where domestic violence has been an issue. Only represented parties are referred to mediation. Private mediations deal with the entire range of domestic issues. Since more than 50% of filings in the Maryland Court system relate to domestic issues, the Maryland judiciary favors dispute settlement by mediation and negotiation, rather than litigation. Mediation has proved to have several advantages over litigation., It is generally quicker and much less expensive than a trial. Mediation also gives the parties an opportunity to control the resolution the cases, since the goal of mediation is that both parties will be satisfied with result. The basis for a solution may be more creative than one that could be framed in the context of a law suit. The parties may agree to so something that would be impossible as a legal solution, but would be beneficial and acceptable to both parties.

There are several aspects of family law disputes that make them particularly appropriate for mediation.

In domestic disputes, financial issues are subordinate to emotional issues, and may not be a factor at all in a dispute. There is no jury in family law cases, although there may be intensive conflict over issues of fact. Discovery is less a matter of gamesmanship, since each party is under a good faith obligation to disclose to the other all of their assets and liabilities.

Family domestic disputes lend themselves to a settlement process on an issue by issue basis rather the an overall resolution, because there many parenting issues that do not directly involves finances. Practically and psychologically, a family law mediation is the ideal setting to make progress in settling a case one issue at a time.

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Effective Mediators

Effective mediators help the parties find a negotiated solution, by listening to the parties, helping the parties re-evaluate their interests in each position, and re-framing the parties position from an "I win, you lose" situation to an "I win, you win" situation. Mediators identify the issues in disputes and break disputes down into particlar issues that can be separately resolved. They perform a valuable service by managing the communication process so that everyone has an opportunity to express their views; keeping the discussion focused on the issues; and restating each party's points to the other party to make sure that each party understands the other's views. Another important service is tying down agreements on issues where the parties do agree, as well as proposing alternative settlements that move the discussion forward. The primary goal in many domestic mediations is the future welfare of the children of the marriage. The mediator must make sure than neither party uses the children to secure negotiating advantages over the other party.

In real life, power, interests, and rights overlap. While resolution of domestic disputes emphasizes resolution and a balancing of interests, the governing body of family law is still in factor in mediation. The effective mediator makes sure that each party understands what each parties' rights and obligation are under the law, and when the law is not clear, the effective mediator will identify the lack of an answer and let the parties each decide whether the interest at stake is so great as to justify a court determination.

When a couple separates, the conflicts that existed below the surface of the relationship -in areas such as finances, child-rearing, and the ordering of priorities around agreed upon values- often harden into irreconcilable conflicts. It is the task of the mediator to get the parties to communicate with each other again, to enable the parties to move on with their lives, and when children are present, make arrangements for the future welfare of the children. As the parties' relationship disintegrates, conflict escalates when one party fails to understand what law applies to their dispute or interprets the facts in such as way so as to prevent an agreement that is consistent with the long term goals of both parties. In adversarial situations, the inability to communicate results in lawyers promoting different views of the law and the facts. These lawyer-advocated positions are usually magically settled immediately prior to trial when the parties have exhausted their financial resources on legal fees. An effective mediator is able to change this cycle of communication by getting the parties to focus on the future impact of their decisions on their children, the financial cost of not reaching agreement, and the practical consequences of reaching a solution rather than facing protected litigation or adversarial negotiation over which they have little control.

The mediator is a consultant who is an expert at facilitating this of communication. If there is an imbalance of power which makes this impossible it is the mediator's responsibility to either recommend termination of the mediation, or take steps to redress the imbalance of power so as to avoid an unfair result. The mediator needs to have skills which are not dissimilar from those possessed by an effective marriage counselor, except where a marriage counselor attempts to preserve the relationship by improving the communication patterns of the parties, the mediator presides over the dissolution of the marriage and equitable resolution of child support, custody and visitation, property dissolution and spousal support issues.

A key quality of effective mediators is the ability to listen carefully to each party, building sufficient trust between the parties and herself, so that the parties will listen to the mediator's proposals for alternative agreements and a re-framing of the issues in terms of the long term goals of the couple. Unless the parties are able to listen to the mediator, the communication process remains frozen and no agreement is reached. Traditionally the mediator uses a variety of techniques to build trust between herself and the parties and between the parties themselves. These techniques involve agenda setting and management, guiding the discussion, enforcing rules which norms which encourage respectful communications between the parties, and observing body language and inflections of tone and voice which provide clues to the degree of rapport and mistrust between the parties or their willingness to reach agreement on the issues.

The central question to be explored in this project is whether the absence of face-to-face interaction helps or hinders this communication process. Is there something about electronic communication that enhances the communication process, particularly in the context of these types of cases. We think there is.

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The Potential Problems with On-Line Mediation

There are obvious problems to any kind of mediation, and some which are particular to on-line mediation.

First, in the selection of cases, one has to control for power imbalances in mediation. In divorce mediation in particular, theoretical work in this areas (Coogler, Structured Mediation in Divorce Settlement (1978), it has been demonstrated that divorce mediation works best where either the two parties are competitive or conditionally cooperative. Situations where one party is competitive and the other is unconditionally cooperative are not candidates for mediation, whether on-line or in person, because of power imbalance.

Recent research on gender imbalance in family mediation between males and females could become even more exaggerated in an on-line context. To the extent that males are more comfortable in utilizing computer technology they would have a theoretical advantage over females who are less experienced in utilizing on-line resources. However, gender imbalance, and experience in utilizing on-line resources is likely to be less of an issue in mediating the health care disputes which would provide a basis for comparison with domestic disputes.

Second, access to on-line resources is an issue, at least at this stage of our society's development of the "information superhighway." Presently, only a relatively small percentage of the total population have access to, and regularly use the Internet. Recent statistics reveal that the dominant group of Web users are 77 percent male; only 23 percent are female. This group tends to be highly educated. Ninety-seven percent of this group has more than two years of college education, and work in technicians, engineers or as professors are in the top three occupational categories. It could be argued that whatever the sample of cases selected for this project, it is not representative of the general population and that it is too early in the development of the "information superhighway" to consider on-line mediation a practical alternative.

However, education is the key to Internet participation. The more educated segment of the population will have access to the Internet and become frequent users than any other group. The group of users who have Internet access is growing at an exponential rate, with some forecasters estimating that 35% of the U.S,. population will have access to on-line resources by the year 2000.

Finally, people are most comfortable in face to face contact which provides a richness of cues and information. Body language, tonal variations, pauses, all become part of the conversation. We also like to know as much as we can about the people with whom we are interacting. We want to know their age, gender, ethnicity, how they dress or wear their hair. We relate to people in the context of this information; we don't know whether trust between mediator and the particpants can be developed as quickly in an on-line context, rather than a face-to face environment. Yet one can argue that this distance from the real world can be a virtue instead of a vice. Because the computer screen separates the parties, they can't focus on each other's presence. They are forced to focus on the substantive issues on the screen. The requirement that the parties focus on the substantive issues may in fact correct the gender imbalance that often exists in face-to-face mediations in divorce issues where the dysfunctional dynamics of the couple's relationship are reproduced in the mediation room and interfere with the parties ability to reach an agreement.


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The Potential Advantages of On-Line Mediation

The idea that electronic communications can be a valuable device for enhancing the capacity of the parties to communicate with each other is untested. The experience that is most similar to on-line mediation is mediation by telephone. We have found no studies that supports or contradicts the idea that telephone mediation is superior to face-to-face mediation. The anecdotal data that we have been able to collect from discussions with family law mediators about their experience in mediation by telephone is that the physical and psychological distance created by the telephone reduces the amount of emotional hostility between the parties. The result is that agreement is reached in less time and the parties are not only satisfied with the result but continue to relate to each other by telephone rather than face-to-face. However, telephone mediation almost always involves parties who live at a distance from each other, which makes it costly to come together for a face-to-face mediation. This distance might be an incentive to reach an agreement in order to put their marriages behind them and move on with their lives. The cases that we plan to select for this project will not all involve a distant relationship.

We are interested in exploring the question of whether on-line mediation by itself can reduce the emotional temperature of the parties, independent of the fact that they may be living in the same city or community. We theorize that the advantages to on-line mediation, even for parties who live in close geographical proximity, include:

  • The convenience created by enabling the each party to chose the time when he or she wants to respond or participate; the value in permitting each party to reflect on their view and position before responding, and the luxury of having the time to explicate carefully the reasons for a position in an environment that insulates each party from the emotional impact of the other.
  • The reduction of emotinal hostility between the parties. Often in a traditional mediation the dynamics of the interaction between the parties is reproduced in the mediation setting, with one party striving for dominance over the other. The mere sight of one party by the other is often enough to trigger emotions that were operative in the relationship when the parties were married, and which in fact led to the break-up of the relationship. A competent mediator will seek to reduce the imbalance of emotional power between the parties. We believe that electronic communication can function as a mediating influence that reduces the amount of emotional conflict that each party brings to the conflict.
  • The advantage of allowing each party to fully develop their position before responding without the pressure of the other party's physical .
  • The value of providing a clear and complete record of the mediation discussions at each stage of negotiation leading to the settlement of each issue and the overall dispute.
  • The ease with which the parties can access legal information to help the participants realistically assess the outcome of a trial on the merits and the advantages of cooperation.
  • The promise that on-line mediation can provide a learning experience for the parties in adopting a new mode of communication that can enable them to effectively negotiate and communicate future conflicts. This is particularly important in custody and visitation matters which require that the parties continue to maintain their relationship and communicate about the best needs of their children in a rational manner for a long period of time after the divorce has become final.

The advantages of cost effectiveness, the opportunity to undertake thoughtful discussions without the time pressure of an immediate confrontation, convenient access to other expert resources to provide illumination and understanding to resolving conflicts, and the capacity of the mediators to carefully document each stage of negotiation suggests that on-line mediation could evolve as an important venue for the future resolution of certain types of conflicts.

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II. - The Architecture Of On-Line Mediation: Building The Mediation Room In Cyberspace

We plan to build a "space" in which mediation will take place that is easy to use; accessible to anyone that has access to the Internet and the World Wide Web; and that provides a variety of "tools" that enhances communication in ways that are not possible in traditional face-to-face mediation.

Our approach to project design is to create a service on the Internet that is attractive, interesting, user-friendly and cost-effective for its participants. The "mediation room" will consist of the following components:

The On-Line Mediation Web Site

This web site will be the gateway to the mediation service. It will advertise the availability of the service on the World Wide Web; contain information about the process for prospective parties; collect contact information from prospects in order to assess the suitability for participation in the project; contain mediation rules, a copy of the agreement to mediate; information about the backgrounds of the mediators; and a copy of the mediation handbook.

A Legal Information Web Site

In each category of dispute there will be a web site that contains substantive legal information. Work is already underway to create a Maryland Family Law Information Center, which is supported by a separate grant to the Law School. This web site will contain general discussions of Maryland family law, supported by visual enhancements and graphics; sample forms and instructions for pro se litigants, and tools, such as a child support calculator and judicial standards for alimony and spousal support awards. Flow charts and graphics will be used to explain complex legal concepts. The generalized discussion will also be annotated with case and statutory references, and there will be links to other sites that provide information on a variety of family law issues. Easy access to cases and other legal materials can be used by the parties to support arguments and clarify their negotiating positions. A similar web site will be created to support health-related mediations.

A Reference Librarian and Help Desk

The legal web sites will be supported by a staff person with expertise in the underlying substantive law. This person will be able to guide the parties to relevant legal materials in the web site, but will refrain for providing actual legal advice. Another staff person will also provide technical assistance, either by telephone or by e-mail, to help the parties and the mediator utilize the software programs and master any technical barriers that might detract from the mediation itself.

Multi-Threaded Discussion Group Capability

Another component will be the use of multi-threaded discussion group software as a mechanism for structuring lines of arguments between the parties, and providing the primary vehicle for the mediator to facilitate discussion and negotiation between the parties. The software to be used to support this function is a new program developed by a company called net.Genesis that enables a web site administrator to create multi-threaded discussion groups off of a web-site. The discussion software can be used to set the agenda for dispute settlement, organize the parties comments around particular issues, and provide a permanent archive of the mediation discussions and the agreements that have been reached.

E-MAIL

E-Mail will be used by the mediator to communicate with each of the parties and will enable each of the parties to consult with the mediator as they shaped their negotiating positions. E-mail between the mediator and each of the parties will provide a means to simulate the kind of shuttle diplomacy mediation that some mediators find to be very effective. All filings of exhibits and documents will also be conducted by E-Mail.

Internet Relay Chat (IRC)

Internet Relay Chat can be used to conduct simultaneous discussions between the parties and the mediator as if all the participants were in the same room. Like a telephone conference call, IRC supports real-time conversations and communications. The new version of Netscape's web browser, (Atlas), will support real-time chat capability and well as real-time voice communications. The chat client also supports a white-board functionality which would enable the mediator to either post a document for both parties to discuss simultaneously in real-time, or diagram a concept or a set of issues that both parties can relate to and respond to in real-time. Each mediation room can have its mediator, agenda, moderator, "action" list, and password-protected security. The Mediator can invite a party to a own private room for a one-to-one chat which is totally secure from the other party.

Video Tele-conferencing

We are exploring the use of video-teleconferencing utilizing the Connectix video camera. The Connectix camera costs $100 and transmits a video signal over a regular telephone line. Enabling desk-top video-conferencing would allow the mediator to see each of the parties and for each of the parties to see each other. Since the capacity to see each other may change the nature of the communication from a purely text-based communication medium to one enhanced by the capacity to observe the other party in real-time, we are considering creating two tests groups, one that has access to video, and one that does not.

Document Assembly Tools

The outcome of the mediation will be a settlement agreement. The mediator should be able to cut and paste a settlement agreement together from clauses that have been negotiated by the parties. Each thread of the discussion will deal with a substantive issue that gets resolved by re-framing the conflict into agreed upon language that gets incorporated into a settlement agreement. The mediator will draft the settlement agreement. The resulting agreement-the product of the mediation-can be E-mailed to the parties' respective counsel for advice and evaluation prior to execution.

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Electronic Settlement Agreements in Family Law

The outcome of a successful mediation of a domestic dispute is a Marital Settlement Agreement, or an amendment to an existing agreement. In a domestic conflict the parties often have a continuing relationship one another. This is particularly true of negotiated custody and child support agreements. Unlike paper contracts, electronic contracts and agreements can provide a mechanism for monitoring obligations entered into as part of the agreement.

As Ethan Katsh has written in Law in a Digital World (1995, Oxford University Press), p. 125:

By providing a new link between the parties, the dynamic contract becomes something that can contract can contain warnings, alarms, notes from one party to another. This kind of contract can overcome many different kinds of boundaries, for example, limit contracts to what appears among the clauses of the contract. Whereas, under some circumstances one might want everything to be contained in a hypertextual document, referring to and linking other sources of information more easily than can something on paper. The contract can respond not only to the parties but to changing conditions of some kind and then inform the parties of these new events or conditions. The electronic contract, in other words, connects the parties to each other and, if desired, to other people and to other sources of information in ways that are difficult to imagine with paper.

For example, child support obligations in Maryland may be changed when either the parties experience a change in financial circumstances, or the statutory table of required child support payments changes. As part of this Project, we could explore the archiving of the Settlement Agreement in electronic form on the Projec

Richard S. Granat
Director, On-Line Mediation Project
The Center for Law Practice Technology at the University of Maryland School of Law
For additional information or comments contact: rgranatn@counsel.com


Copyright, 1996, Richard S. Granat
Last Revised 05/13/96