The growth of mediation has long been tied to the development or technology. I remember well drafting my first few mediation agreements on a typewriter and nearly having a heart attack when participants wanted to make last minute changes. I was thrilled with the development of word processing technology, self-calculating spread sheets, voice mail and the fax machine. More recently, the integration of email, web-based discussion and instant messaging into my mediation practice are profound additions. I am in fact mediating on the Internet these days as much as I am mediating face-to-face, and I am stunned by certain qualitative advantages in this process. These advantages include ease, efficiency, economy and the remarkable benefits of asynchronous communication.
At one level, it may be argued, the Internet is just another communication medium, like phone or fax or "snail" mail. In this context, more and more mediators choose email and the web for everyday communications, promotion, case management, client homework, agreement drafts, information distribution, and pointing to other resources.
There are, however, certain qualitative differences of the Internet (beyond being free and instantaneous) that make the Internet more than just another communicational medium. Through email and web strategies, an unlimited number of mediation participants, in comfort and safety, and at little or no cost, can be involved in communicating about their disputes, negotiating issues, and drafting language for documents. Archives of discussions can be maintained so that newcomers can quickly get up to speed. Participants can establish links to mediation materials within their discussions together with links to any other resource that exists on the web.
The Internet of today is primarily text based. If we squint our eyes and bend our ears, we can begin to see and hear a world in which audio and video will be seamlessly integrated with text material. Our online mediation world will become more and more "real," allowing greater and greater utilization as a means of enhancing and economizing mediation. There will be gains in terms of increased participant involvement, enhanced quality of deliberations, as well as cost savings.
Many, if not most, mediators are already using the Internet to some extent for business promotion and in their practices; use email to communicate with clients and colleagues; send "attached" files with email; know how to highlight text in a file, to change fonts and colors. A large number of mediators now have websites where they describe and promote their services. And many of our clients are even more advanced. Use of the Internet in your practice will soon shift from being an appealing augmentation to being an absolute necessity.
In terms of providing mediation services, the question is not so much whether to use the Internet, but how we can we best integrate face-to-face, online and other communication strategies to support the highest level of participant involvement and to enhance their ability to reach agreement. Ideally, in many mediations, perhaps most, we will have some measure of face-to-face meetings, online exchanges, and other forms of communication. We as mediators are wise to utilize phone calls, voice mail, fax, express delivery and regular mail, all as we think strategically in a particular case. The decision to use the Internet, like any and all other interventions, should be based upon the specifics of the particular case.
Strong argument can be made, however, that the Internet has advantages over other communications methods in terms of its ubiquity, low cost, elegant silence, convenience, and, perhaps, most importantly, its "asynchronous" nature.
Moving Beyond Real Time to Asynchrony
In comparison to "real time" discussions, mediation participants on the Internet (at least in email and web discussions) do not need to respond immediately as they are realistically compelled to do in face-to-face discussions. One's immediate response (as a participant or mediator) in face-to-face mediation may not always be one's best response. In fact, it is sometimes one's worst! In an asynchronous setting, participants can more thoroughly consider proposals and develop options with a bit of time to fashion their response outside of the gaze of the other side. The asynchronous nature of the Internet offers a contemplative, safe space in which responses are crafted and only posted when they are the mediator's or participant's best (not immediate) contribution.
We may assume that real time communications are preferable. Yet, whatever the benefits, there are problems with real time discussions, particularly in the world of conflict resolution. Think of the resources committed to and the fragility of real time discussion systems, whether physical meetings at a specific time and location, group conference calls, or video conferencing. Just how satisfying is it for a participant to be in a waiting room while the mediator is in caucus with other parties? How satisfying is the typical telephone conference call? Do we need to be physically together to make progress? Because of its affordability, capability, safety and ease, the Internet will force us to reexamine everything that we do and how we do it. The difficulties of scheduling face-to-face meetings, especially when multiple parties and attorneys are involved, often results in unnecessary pressure on participants and the mediator to cut a deal while everyone is still on the premises. Face-to-face mediation often becomes "crisis" like, commonly limited to a single tense meeting. The Internet, by contrast, allows participants, lawyers and the mediator to move beyond crisis mediation to more capable and relaxed asynchronous problem-solving discussions.
Hard as it is to believe, we are entering a new world where a good measure of mediation will be on the Internet. The cost savings, convenience and quality of consideration intrinsic to asynchronous discussion will be the leading factors driving mediation discussions to the Internet. As the Internet becomes more and more accessible, it will make less and less sense to travel and meet at enormous cost.
Immediate Practical Uses of the Internet by Mediators
1. Use Email for Everyday Communications
While Email is not a appropriate for all communications, it is certainly effective for moving information in a speedy, silent, affordable way. There is little necessity today (beyond habit) for distributing hard copy correspondence and materials. You can almost certainly distribute the same information, looking just as good or better, in an instant over the Internet, at virtually no cost. Digital information is easily stored, filed and searched. Large file cabinets are on their way out. Setting up an effective directory structure for client documents and a mail box for each case makes case filing, management and accessing documents easy.
2. Post and Manage a Descriptive (Public) Website
By developing and posting a web site you can dramatically lessen your promotional costs. You can now include your URL (web address) in directory listings at no additional cost. You can shrink the size of all of your other advertising because all the information a consumer or referral source needs to know is on your website. A website is your first opportunity to impress potential clients and referral sources ,and to share the nature of your practice. Mediators are commonly selected in an open market system. It is important that you learn to put your best professional self forward on the web. In the near future, mediator websites will including audio and video clips. It can be argued that, in the mediation market economy, the more information consumers have, the more capable they will be in determining which mediator's services to select.
3. Post Forms, Articles and Handouts
In addition to having a public descriptive website, mediators are wise to consider posting forms, articles, handouts and business documents on the web. Any materials or documents you t regularly send out can and should be posted, though not necessarily linked as part of the public web site. The cyber-mediator sends very little, if any, hard copy mail. Having your business documentation posted on the web (nothing fancy) allows the mediator to respond to inquiries about services with preset "stationary" emails that include basic client contact information including embedded links to appropriate web pages. A short email message with a few key web links is a respectful means of communicating with a potential client or referral source.
4. Use Email for Meeting Notices, Homework and Caucus Discussions
Particularly in cases involving more than two participants, electronic communications is an efficient and effective method for notifying parties of meeting times, circulating new drafts of documents, or providing resources. To make capable use of the Internet, good to establish a protocol with participants as to how often they will check their email (at least every 24 hours unless out of town is suggested).
Email is also a convenient way to assign both joint and individual "homework" to participants. Rather than having to create an ideal homework assignment during the session, you can simply say that "I will be sending along some homework by email." Then, after the participants have left the office, you can carefully craft the best possible homework assignment, have a record of the assignment, and stimulate beneficial client participation between mediation sessions--all at virtually no cost.
Given this powerful ability to assign "homework," and because meaningful dialogue and change does, in fact, occur through Internet discussions, increasing numbers of mediators will move beyond single session face-to-face meetings to providing time for Internet discussions. It may be that we move to a model where you meet face-to-face with clients to ensure agreement as to process, to hear initial presentations and to frame the agenda. Thereafter, most of the dialogue may be more capably and affordably conducted over the Internet.
Moreover, a significant amount of what you are accustomed to accomplishing in caucus discussions can certainly be done online. We convene a caucus in mediation because we know the benefits of allowing each side the ability to think without the penetrating gaze of the other. Most mediators purposefully break into caucus to create asynchrony between participants, to allow each participant to be contemplative and thoughtful, to be better, if not at their best. The Internet and its asynchronous nature offer these same "caucus" opportunities to assist participants to be at their best, only much more affordably and conveniently.
5. Send Draft Agreements as Attached Files
There is great benefit to sending agreement drafts to participants as quickly as possible and in a form that: 1) conveys the status of the mediation dialogue; and 2) gives participants control over the actual text so that they can fashion responsive proposals and counter-proposals. For example, when the terms of a draft that have not yet been reviewed by participants for acceptability they can be stated in italics. Provisions that have been reviewed and accepted may be placed in plain text. Provisions that have been reviewed and rejected may be shown as stricken. When I want to make a comment to participants in the context of the draft agreement, I may put that in bold. At the end of a mediation, I simply strip out the italics, strikeouts and bold text and, viola, we have the Agreement. I also encourage participants to respond to my drafting with responsive provisions in their favorite color.
6. Use Nicknames, Mailboxes and Filters for Client Matters
Consistent with the themes of saving time and money, it makes sense to create a "nickname" or "alias" for a client group. If we have 6 parties and 8 attorneys in a matter, we are wise to simply enter those 14 email addresses one time and then associate a nickname (such as "Smith") to that group of participants.
While we are at it, it makes sense for us to create a "Smith" mail box and for us to transfer all email to that date on the particular case into this case mailbox. We are also wise to advise all participants in the case to utilize the word "Smith" in the Subject Line of all emails in the case. We can then set a "filter" in our email program so that all incoming and outgoing email with "Smith" in the Subject Line will automatically be filed in the "Smith" mailbox. We can accomplish most, if not all, of our case filing in this simple electronic process!
7. Other Helpful Tools: Voicemail, Efax and Instant Messaging
If you decide to utilize voicemail, be sure to mention your email address and website in your outgoing message! Potential clients and referral sources can get to know you from your website. Your voice mail and website are your new and improved electronic information distribution system. They work for you 24 hours a day, 365 days a year. Furthermore, he more identifiable your email and website addresses are, the better. If your addresses say something about your mediation practice, all the better.
Efax at www.efax.com is a helpful augmentation to our communicational options. With efax, you can send and receive faxes as email attachments. This saves paper and allows for easy filing in your case email mailbox. Instant messaging, such as that available from www.icq.com, allows you and others to be connected in a real time direct communication link. Users of icq can look at their instant messaging menu and see which participants are presently on line and available for direct and immediate communication.
8. Subject Lines and Signatures
In addition to utilizing nicknames for mediation participants and creating a mail box and filters for each case, the mediator is also advised to recognize the importance and power of Subject Lines. Subject lines are the mediator's first and best opportunity to frame a message. That frame, through successive replies, is carried forward in the participants' responsive discussion.
The mediator is advised to keep emails short and on subject. It is often better to send more than one email with different subjects than one long email. Within each email, separate the ideas into short paragraphs so that participants can easily embed their responses in context.
The mediator should also have an email signature, such as:
This avoids having to sign your name to each email and also provides each recipient with access to your website, and other contact information. Remember, the recipient will already have your email address, so it is not necessary to repeat this information in your signature.
9. Collect Key Email Addresses
It is also wise for the mediator to collect email addresses of referral sources, satisfied clients, key constituents and to others for purposes of sending a periodic email newsletter. As wonderful as your web site may be, it is "just there" and, in the rush of everyday life, people may forget to visit your website regularly. You can communicate with referral sources and satisfied clients by sending a monthly or bi-monthly email newsletter with 5 to 7 or so brief items. In this way, you can use email strategies to drive traffic to your website. An inexpensive alternative is to group your email address list under the "bcc" field and then to send your announcement to yourself. Up to 100 of your addressees will then receive a copy of the message without a long list of email addresses appearing in the message. If you have more than 100 addressees, Internet Service Provider will likely and suggest that you consider purchasing a more robust email newsletter subscription system.
It is challenging to write an article such as this because the Internet is so rapidly expanding that we are surely just at the beginning of online mediation. There are already efforts underway to offer online case management, mediator disclosure, agenda development, voting tools, joint document editing, agreement models and situation/solution data bases. Broadband, audio and video development will make the Internet increasingly viable for dealing with a broad range of dispute. Reasons for meeting face to face will still exist, but the absolute need to meet in order to make progress will not. Mediators who embrace new Internet technologies will be at a distinct advantage over those who do not. The time for making this move to become a cyber mediator is now.