Mediating on the Internet: Today and Tomorrow (part 2 of 2)

To Part 1

~~~~~~~~~~


Subject:
Online Mediation; Getting Started


Hello party
1 and party 2:



Thank you for using Online Mediation. I am the mediator assigned to your
case. My profile is available at http://www.onlinemediators.com/mediator.cfm?id=1119




I am currently reviewing the case and will be composing some questions
to begin the process. I will be sending that message to everyone involved
within the next couple of days.



If you have questions about the process or would like to send me additional
information, you may reply to this message. Remember ‘Reply’ will send
the message to me alone. ‘Reply All’ will send the information to me and
the other party.



Again, thank you for participating. I will be back to you soon.



Your Online Mediator


~~~~~~~~~~


Subject:
Time to Get Started


Hello. This
is your friendly online mediator again.



Unless I hear otherwise, I will assume that you are satisfied with my
selection as your mediator. I will do my best to assist you.



I want to confirm that you understand the voluntary nature of this process
and also that you have complete decision-making power. I also want to
confirm that our discussions are confidential. No communication will be
held against anyone in any possible future contested action.



Please let me know of any questions that you have as we begin our discussions.




Perhaps the best place to begin is to ask for each of you to summarize:




1. The Issues that you believe need resolution.

2. Your Interests (what you would like taken care of)

3. The Options (different ways we could solve the issues).



Thanks for working with me to resolve this matter. I will be back in touch
as soon as I have heard from each of you. I encourage you to do a “reply
all” on this message so that we can share this information. If you want
to communicate with me individually, that would be by a “reply”
message (or separate message).



Your Online Mediator


~~~~~~~~~~


Subject:
Perhaps Some Discussion Between You Would be Helpful


Greetings,




I want to confirm for each of you that I have read your responses on the
Online Mediators intake form and your respective descriptions of the situation.




I am thinking, to the extent that you desire, that it might be good for
each of you to more fully share with one another (not just me) your concerns
and your suggestions for improving the situation.



Also, do you have any questions for one another?



Your Online Mediator


~~~~~~~~~~


Subject:
How Can We Make This Work for Everyone?


Hi Folks,




Understanding that we may not settle this matter in a way that will be
ideal for either of you, we can only settle this matter if we have some
flexibility from each of you.



What degree of flexibility would you be willing to demonstrate if the
other was also so forthcoming?


Can you think
of any exchanges of arrangements that might be acceptable to you both?




Can you think of any package deals that would work?



Are there any other ways that you could benefit one another?



Your Online Mediator


~~~~~~~~~~


Subject:
How Important Is It For You To Settle This Matter?


Hi,



I sense your frustration.



I would like to hear from each of you as to the relative importance of
solving this matter and being done with it.



How could we do that in a way that you could both support?



Your Online Mediator


~~~~~~~~~~


Subject:
Time to Make Some Progress


Hi,



Thanks for working with me and the process thus far.



My understanding is that the fundamental question is how can we best solve
these issues:



(List Issues as “How can we best . . . ” or “What is the
best way for us to . . .”)



Let me now ask, what specific proposals for resolution would you like
to make to the other that you believe they may accept?



Your Online Mediator


~~~~~~~~~~


Subject:
Let’s Think About This Creatively


Hi,



Can you think of two different sets of arrangements, either of which would
be acceptable to you?



What would you need to receive to agree to the other’s proposal?



What would you be willing to give, that you understand they desire, if
they were willing to go with your

suggestions?



Thanks for your consideration.

Your Online Mediator


~~~~~~~~~~


Subject:
A Set of Arrangements for Your Consideration


Greetings,




As we have not been able to easily resolve this matter through direct
exchange between you nor through my shuttle efforts to date, I am thinking
that this might be a good time for me to describe a possible set of arrangements
that I believe may work for both (all) of you.



In offering this possible “reference point,” I want to emphasize
that this is not necessarily the resolution that I recommend. I have not
even processed the information in that way. Rather, this is the resolution
that, if you were to ask me, I would think that you would both (all) most
likely be able to support.



I ask that you give this “reference point” your fullest consideration
and please let me know whether it might possibly be acceptable, if acceptable
to the other(s), or of any fine tuning that would be necessary for these
arrangements to become acceptable.



Thanks for your consideration and efforts!



Here is the reference point set of arrangements that I ask you to consider:


Your Online Mediator


~~~~~~~~~~


Subject:
Confirming Your Agreement


Greetings,




The purpose of this message is to confirm what I understand you agree
to as a means of resolving this matter.



It is my understanding that you agree as follows:



Terms of Agreement

1.

2.

3.



Please let me know if I have mis-stated this agreement or if I am missing
any important pieces.



Your Online Mediator


~~~~~~~~~~


For a transcript
of online email communications in a divorce case, see: http://www.to-agree.com/advemed.htm




Standards for Online Mediation


With the rapid emergence of online dispute resolution, standards and protocols
for effective participation are now being established.


As an example, the U.S. Department of Commerce and Federal Trade Commission are sponsoring
a public workshop on: Alternative Dispute Resolution For Consumer Transactions
in the Borderless Online Marketplace (See http://www.ftc.gov/os/2000/02/altdisputeresolutionfrn.htm
. This public workshop is to examine developments, gain further understanding,
and identify potential issues associated with the use of alternative dispute
resolution for online consumer transactions. This Notice is also seeking
public comments to inform the discussion that will take place at the workshop.


A set of initial Online Mediation Protocols have been developed by The Mediation
Information & Resource Center (MIRC) at http://www.mediate.com
for its OnlineMediators initiative at http://www.onlinemediators.com.
These Protocols are as follow:


MIRC OnlineMediators Protocols for Online Mediation



February 13, 2000



Special Note: These Protocols are in addition to online mediation practice
consistent with the ABA/SPIDR/AAA Model Standards of Practice to which
all MIRC OnlineMediators subscribe.




I. Description of the Process



The process of Online Mediation typically involves a series of email messages
between the mediator and each participant. In his or her professional
discretion, the mediator may utilize joint email communication, web forum
(more highly secure) discussion, textual or audio chat, instant messaging,
fax and phone communications.



MIRC’s Online Mediators program encourages mediators to structure their
facilitation in the following manner:



A. Each participant should be encouraged to present one or more confidential
statements to the mediator setting forth the issue(s) they believe are
in dispute, their interests for any settlement, and the various options
the participant sees as possible.



B. The mediator should summarize the issues and seek to gain agreement
that the full range of presented issues will be addressed.



C. The mediator is then encouraged to engage in a series of private electronic
conversations with each participant, and jointly with participants in
the mediator’s professional discretion. These conversations are to include
questions to fully understand each participant’s perspective, interests
and perceived options, as well as any comments and suggestions that may
further settlement by the mediator.



D. Upon conclusion of the electronic conversations, there should either
be a confirmed settlement, including means of implementation, or the mediator’s
declaration that no agreement has been reached.



E. If there is a settlement, the mediator should prepare a summary of
the terms of settlement and ask each side to confirm that they will abide
by the terms.



II. Suggested Ground Rules



A. Pre-mediation Responsibilities



1. The participants are asked to notify the mediator of any travel plans
or other circumstances that may prevent them from participating for more
than 24 hours in the mediation.



2. The participants are asked to notify the mediator of any acceptable
alternative email addresses in the event of technical difficulty.



B. Sending/Receiving Email



1. In the event the mediator sends a message to both parties at one time,
be aware that REPLY TO ALL will have you sharing information with all
listed participants. If you want to only contact the mediator, be sure
that you simply REPLY. You can never be too careful in ensuring that only
those whom you want to get your message are in fact sent your message.



2. The mediator should respond within 24 hours of receipt of any participant
email message or other communication.



3. It is the responsibility of all participants to check their email at
least once per 24 hours and to be responsive to mediator communications.



C. Delay in Sending/Receiving Email



In the event there is a delay in receiving a response online, the mediator
shall be empowered to telephone, fax or use whatever other means are available
to contact a participant. The parties should assume that if there has
been no contact for 3 days, they should make every effort to contact the
mediator and determine what the problem is.



D. Attachments



It is possible that the mediator will be transmitting attachments to certain
messages. If this occurs, it is important that all participants are able
to read the attachment(s). The mediator is therefore to seek to obtain
agreement on an acceptable format (i.e. Word, Wordperfect, Rich Text Format
or ascii) at the beginning of the mediation.



E. Distribution of Messages



All electronic communications generated from the mediation shall not be
permitted to be distributed to a non-participant at any time without the
express permission of all parties and the mediator. In the event of an
inadvertent distribution, all effected participants shall be promptly
notified.



F. Management and Disclosure of Information Online



The mediator shall only disclose specific offers and ideas from one participant
to another as the mediator is expressly authorized to share. If it is
unclear whether a mediator is authorized to share information, the mediator
shall request this permission from a participant and only share information
with the other participant as is authorized.



G. Privacy Protected



1. The participants agree to not use any of the information presented
or received during the mediation in any future legal, administrative,
or other contested proceeding, nor in the media. This includes all communications
between the participants and with the mediator and OnlineMediators program
from the earliest contact regarding possible mediation to the completion
of the mediation.



2. The participants further agree to not disclose any information presented
or received to other people who are not participants to the mediation,
with the exception of participant professional advisors (attorneys, financial
advisors, union representatives, and the like). In all such events, that
fact that a participant consults with a professional advisor does not
in any way lessen the confidentiality of the online mediation process.
The confidentiality of Online Mediation is intended to protect all participants
with the expectation of such confidentiality (non-admissibility and no
contacts with media) and also to protect the mediator and OnlineMediators
Program.


The Future


One is hesitant to publish a document such as this as the Internet is so rapidly expanding
that we are surely just at the beginning of the development of online
dispute resolution. There are already efforts to improve online case management,
mediator conflict disclosures, agenda development, consensus determination
and voting tools, joint document editing and incorporating agreement models
and situation/solution data bases.


Assuming that the Internet and high speed connections become as common as the telephone
and television (many say they will all be part of the same devices), then
it is certain that online dispute resolution will grow if only based upon
cost and convenience. There will be “set system environments”
(processes like blind bargaining and perhaps arbitration), as well as
“open system environments” such as OnlineMediators where negotiators
and mediators flexibly utilize a number of different facilitative tools.


Perhaps the greatest challenge will be for our dispute resolution processes, especially
mediation, to maintain integrity and meaning as dispute resolution moves
online. Now more than ever, we need to define exactly what “mediation”
is before the process is so variably presented on the Internet that the
meaning of the word itself becomes blurred and confusing. There are many
other issues,such as: Just how “voluntary” will mediation be
on the Internet? And how confidential? How will mediators be selected
in a way that ensures their integrity? Their competency? What do we do
when parties do not reach agreement? Stay tuned for consideration of these
and the many other issues that certainly lie ahead.

                        author

James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's tenure, Mediate.com… MORE >

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