Paths Forward for Online Mediation – 8 Primary Recommendations

Task Force’s 8 Primary Recommendations

In addition to the many Committee Recommendations, the Task Force’s Executive Committee offers these 8 Primary Task Force Recommendations below to support the field of mediation fully embracing online mediation and online mediation training:

1 – Develop Online Mediation Advocacy and Resource Capacities

Develop online mediation advocacy and resource capacities to vigorously promote the use of online mediation globally, including expanded access to online training of conflict resolution skills and effective mediation for all ages.

2 – Expand Access to Online Mediation Services and Online Mediation Training

One of the great advantages of online mediation and online mediation training is in the area of access. The Task Force recommends that online mediation should be easy for participants to find and participate in and not limit their right to representation. Online Mediation should further be available through both mobile and desktop channels, minimize costs to participants, and be easily accessible by people with different physical ability levels.

3 – Update Mediation Practice and Ethical Standards to Embrace Current and Evolving Issues Raised by Online Mediation

Update mediator practice and ethical standards to fully embrace online mediation and online mediation training.  Online privacy and security issues need to be addressed in addition to mediation confidentiality.  Issues of participant communicational preferences, and platform equity and access also need to be addressed.

As further described under the Standards and Technology Committee section of this Report, here are an initial set of Recommended Practice Standards for Online Mediation intended to be consistent with International Council for Online Dispute Resolution (ICODR) Standards (ICODR.org):

Recommended Practice Standards for Online Mediation

Accessible: Online Mediation should be easy for parties to find and participate in and not limit their right to representation. Online Mediation should be available through both mobile and desktop channels, minimize costs to participants, and be easily accessed by people with different physical ability levels.

Accountable: Online Mediation providers should be continuously accountable to participants and the legal institutions and communities that are served.

Competent: Online Mediation providers must have the relevant expertise in dispute resolution, legal, technical execution, language, and culture required to deliver competent, effective services in their target areas.  Online Mediation services must be timely and use participant time efficiently.

Confidential: Online Mediation providers must maintain the confidentiality of party communications in line with policies that must be made public around: a) who will see what data, and b) how that data can be used.

Impartial: Online Mediation must treat all participants with respect and dignity. Online Mediation may enable often silenced or marginalized voices to be heard, and ensure that offline privileges and disadvantages are not replicated in the Online Mediation process.

Fair/Impartial/Neutral: Online Mediation providers must treat all parties impartially and in line with due process, without bias or benefits for or against individuals, groups, or entities.  Conflicts of interest of providers, participants, and system administrators must be disclosed in advance of the commencement of Online Mediation services.

Legal: Online Mediation providers must abide by and uphold the laws in all relevant jurisdictions.

Secure: Online Mediation providers must ensure that data collected and communications between those engaged in Online Mediation is not shared with any unauthorized parties.  Users must be informed of any breaches in a timely manner.

Transparent: Online Mediation providers must explicitly disclose in advance: a) the form and enforceability of mediation outcomes, and b) the risks and benefits of participation. Data in Online Mediation should be gathered, managed, and presented in ways to ensure it is not misrepresented or out of context.

4 – Define a Universal Online Mediator Code of Disclosure

As described under the Standards and Technology Committee section of this Report, define a broadly usable international code for online mediator transparency and disclosure of mediator qualifications and a mediator’s commitment to recognized online mediation ethical standards of practice.
Mediator Disclosure Protocol Website

5 – Assist Existing Mediation Programs to Renovate Basic Mediation Trainings and Expand Online Mediation Training

Assist existing mediation programs to thoroughly renovate basic mediator training curricula to fully address online mediation issues and to take full advantage of online mediation service opportunities, online mediation training, and ongoing online mediation group and mentorship opportunities.

6 – Encourage Established Mediators to Get Training to Most Competently Offer Online Mediation Services

Encourage experienced mediators to expand and renew their mediation training to include online mediation best practices by motivating participation in “renovated” basic online mediation trainings, participation in advanced online mediation trainings, and participation in ongoing online mentorship and consultation opportunities.  It is recommended that all mediators take at least two (2) basic mediation trainings, at least one of which has been thoroughly renovated to comprehensively address online mediation issues, concepts and skills.

7 – Expand Online Mediation Mentorship, Clinical and Apprenticeship Opportunities

Define and professionally recognize 100+ hour online and face-to-face mediation mentorship, clinical and apprenticeship opportunities.

8 – Elevate the Recognition of Online Mediation as the “Green Way” to Resolve Disputes

Elevate the recognition of online mediation as the environmentally sound, accessible, cost effective, and safe way to resolve disputes.

Notable here are the efforts of John Sturrock and others who have organized an effort to support a Green Pledge for Mediators.”  See https://womacc.org. Thus far, nearly 300 mediators from around the world have signed up to support the Green Pledge for Mediators. Over 40 countries are already represented!  The Pledge is already available in English, Czech, Italian and Spanish. A brief Corporate Pledge has also been developed as follows: “As a business, we are committed to minimising our impact on the environment. Therefore, we commend this initiative and wish to add our support to the Mediators’ Green Pledge.  We undertake, whenever possible, to use mediators who share a similar commitment to minimising their impact on the environment and who are signatories to this Pledge.”

Knowing that the technical and legal contexts of our work are constantly evolving, we sincerely here encourage the mediation field writ large to now fully embrace the many opportunities available with online mediation and online mediation training. There is, quite simply, no good reason for delay.

Conclusion

Due to the pandemic induced rapid expansion of online mediation and online mediation training, our Task Force was formed quickly and has sought to be responsive in developing our structure, recruiting talented personnel, establishing our priorities, conducting public forums, writing committee reports and in releasing this Final Task Force Report.

                        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 >

                        author

Forrest (Woody) Mosten

Forrest (Woody) Mosten Forrest (Woody) Mosten has been in private practice as a mediator since 1979 and currently is practicing mediation and collaborative law 100% online serving clients throughout the world. Woody is a founding partner of the Mosten-Guthrie Online Training Academy for Mediators and Collaborative Professionals. He is Adjunct Professor… MORE >

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