Creating An Environment for Mediating Disputes On the Internet

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

                        author

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