“Welcome to the online mediation revolution”
Forrest (Woody) Mosten, Task Force Chair
What follows is a well-intended, if not noble, effort intended to assist the global mediation field to best embrace online mediation and online mediation training as we move forward beyond Covid-19.
Mediate.com’s Online Mediation Task Force here presents our Final Report and Recommendations, along with our Committee recommendations and resources, with humility, knowing that the ideas contained herein are intended to stimulate additional and continuing consideration, discussion and research.
While we understandably act without a complete vision of the future, and knowing that the technical and legal contexts of our work are constantly evolving, we do here strongly encourage the mediation field to now fully embrace the many opportunities available with online mediation and online mediation training. There is, quite simply, no good reason for delay.
Please know that all of the Task Force efforts have been 100% volunteer. While Mediate.com, the flagship website of Resourceful Internet Solutions, Inc., has generously donated technical support to the Task Force, this Report and the Task Force and Committee recommendations herein are fully independent of Mediate.com and Resourceful Internet Solutions, Inc. As is clear from the depth and quality of materials presented in and linked to in this report, Task Force Executive Committee, Advisory Board and Committee Members spent many hundreds of hours on this important project.
As mentioned, a vast array of resources are herein made available, both within this Task Force Report and via links from the Report. To the extent that these resources have been developed through Task Force efforts, such as Committee Reports, Task Force Forum videos, resources and chat, and links to all Mediate.com resources, these Task Force specific resources are all readily available to you without cost and may be utilized without prior permission. We do ask that all Task Force and Mediate.com resources receive proper attribution whenever they are used.
This Final Report completes the work of the Online Mediation Task Force with the exception of a planned September 24, 2021 Online Forum during which we will “roll out” this Final Report and respond to Forum participant inquiries by those in Zoom attendance.
“Online mediation and online mediation training are here to stay.”
Task Force’s 8 Primary Recommendations
In addition to the many Committee Recommendations that follow, the Task Force’s Executive Committee offers these 8 Primary Task Force Recommendations 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 is 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
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.
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.
What is the Online Mediation Task Force?
“Technology will be omnipresent in the future of dispute resolution. Mediation training must reflect this new reality.”
The Mediate.com Online Mediation Task Force (hereinafter “Task Force”) was formed in response to the Covid-19 pandemic and its impact on mediation services and mediation training.
With the globally required physical separation beginning in March of 2020, overnight, ALL global mediation and ALL global mediation training was suddenly forced to be fully online.
“Mediation” was thus suddenly transformed to online mediation and “mediation training” was suddenly transformed to online mediation training. With this dramatic paradigm shift of mediation and mediation training to “the online,” there is also increasing recognition that historic mediator standards of practice and mediation training standards simply have not kept up with this new online mediation reality.
Put succinctly, the purpose of the Mediate.com Online Mediation Task Force is to ask: “How can the field of mediation best embrace online mediation and online mediation training today and in the future?
How Is The Task Force Organized &
Who is On the Task Force?
In July 2020, Jim Melamed, 25-year founder and former CEO of Mediate.com and Mediate Board Chair, announced the establishment of a blue-ribbon Online Mediation Task Force, headed by Forrest R. (Woody) Mosten as Chair, to make recommendations on how the field of mediation can best embrace online mediation and online mediation training.
The Online Mediation Task Force has worked with leading mediation organizations, professional mediators, academics and researchers in formulating these findings and recommendations. Mediate.com has provided ongoing technical support, information distribution and publicity for the Task Force. With Forrest (Woody) Mosten providing his experience and reputation as Task Force Chair, the following additional mediation leaders served on the Task Force Executive Committee which provided policy leadership for the Task Force (click on name for background):
In consultation with the Chair and Task Force Executive Committee, an Online Mediation Advisory Board was also formed. Advisory Board Members include:
“Are we as a mediation field best organized to embrace the unprecedented opportunity to grow online mediation?”
Forrest (Woody) Mosten
Task Force Committees
The Task Force established the following Committees to accomplish our work:
Beyond Mediation Committee
Conflict Coaching, Life Coaching, Collaborative Practice & Consultation
Co-Chairs: Brian Galbraith and Pattie Porter
Members: D.A. Graham, Amy Skogerson, DeAnne Pladson, Sam Imperati, Jonathan Rodrigues, Tricia Jones
Community Mediation Committee
Chair: D.G. Mawn
Members: Arron Addison, Kabrina Bass, Brandon Brown, Sara Campos, Corinne “Cookie” Levitz, Charles A. Lieske, Norma López, Jeanne Felicity Zimmer
Cross Jurisdictional Issues Committee
Chair: Melissa Kucinski
Members: David Hodson, Ai Kuroda, Morenike Obi-Farinde and Michael Coffee
Ethics, Standards and New Technologies
Chair: Colin Rule
Members: Obi-Farinde Morenike, Linda Seely, Leah Wing, Sharon Sturges, Tim Hedeen, Dan Rainey
Experiential Training Committee
Clinics, Simulations & Video Feedback
Chair: Tricia Jones
Members: Doug Frenkel, Melissa Kucinski, Judge Elizabeth Potter Scully, Tim Hedeen, Julian Portilla, Sukhsimran Singh, Lara Traum, Bruce Edwards, Jan Martinez
Family & Elder Mediation Committee
Chair: Susan Guthrie
Members: Ken Neumann, Peter Salem, Lara Traum, Gabrielle Hartley, Linda Seely
Global Mediation Development Committee
Developing Cultures of Mediation
Chair: Tara Ollapally
Members: Obi-Farinde Morenike, Bruce Edwards, Lara Traum, Ken Cloke, Alberto Elisavetsky
Marketing Online Mediation Committee
Chair: Susan Guthrie
Members: Alberto Elisavetsky, Gabrielle Hartley, Jonathan Rodrigues, Michael Aurit
Mentoring & Case Consultation Committee
Chair: Tricia Jones
Members: Vivienne Fey, Angela Haberholz, Chris Lahatte, Michael Lang, John Settle, Susan Terry, Howard Herman, Cherise Hairston, Amanda Semenoff and Patricia Draves
Public Policy & Large Groups
Chair: Donna Silverberg
Members: Alana Knaster, Annie Kilburg Smith, Betsy Daniels, Janet Chance, Ken Cloke, Kristen Wright, Laurel Singer, Tahnee Robertson, Toby Berkman and Winter Wheeler.
Workplace Mediation Committee
Chair: Clare Fowler
Members: Winter Wheeler, Angela Reddick-Wright
Youth and Schools Mediation Committee
Chair: Clare Fowler
Members: Sherril Ellsworth, Linda Seely, Jonathan Rodrigues
“Online Mediation Training is the greatest opportunity in the history of the field.”
Initial Issues for the Task Force
Among the initial issues that the Task Force identified for consideration were:
Consideration of Diversity, Equity & Inclusion Issues
The Task Force Executive Committee determined that diversity, equity and inclusion (“DE&I”) issues are important “across the board” as we seek to best bring online mediation and online mediation training to expanded communities. This Task Force Report, particularly the Global Growth Committee and Community Mediation Committee Reports, do meaningfully consider certain DE&I issues, but not to the extent that is needed.
The Task Force Executive Committee determined that the timeframe for issuing this Report is insufficient to make needed progress on DE&I issues given their breadth, depth and complexity. These issues need their own more expansive timeframe and independent process to make best progress.
In this context, the Diversity & Inclusion Committee originally established by the Task Force, with Marvin Johnson and Angelia Tolbert as Co-Chairs, and with Leah Wing, Kendra Jobe-Ogunshina and D.G. Mawn as Members, is anticipated to continue beyond the Online Mediation Task Force’s timeframe with the continuing support of Mediate.com led by CEO Colin Rule. In this context, it is anticipated that a more expansive and comprehensive DE&I series of workshops and presentations will be offered as an adjunct to the DE&I Curriculum Component of the Center for Alternative Dispute Resolution’s (CADR’s) ADR Certificate Program. CADR is located in Greenbelt, Maryland.
Issues for Committee Consideration
Additional issues for committee consideration were identified during December 2020 as follows:
Beyond Mediation: Conflict Coaching, Life Coaching, Collaborative Practice & Consultants
Cross Jurisdictional Issues
Marketing for Online Mediation
Experiential Training: Clinics, Simulations & Video Feedback
Family & Elder Mediation
Global Mediation Development: Developing Cultures of Mediation
Mentoring & Case Consultation
Public Policy & Large Group
Standards and New Technologies
How can workplaces be best trained online to effectively collaborate, pre-empt conflict and problem-solve?
Youth and Schools
What can we learn from existing Peer Mediation Training Programs about online training and online mediation services?
Historic Online Mediation Development
“This last year has been transcendent for all of us.”
While the pandemic induced movement of mediation services and mediation training to the online environment was rather dramatic, this movement toward online communication has also been taking place incrementally over the past 30 years. This development started with the popularization and use of email addresses. Soon we were attaching files and developing websites. In time, we have also learned to do online promotion, education, intake, scheduling, agreement editing, agreement signing, payment, satisfaction surveys and just about every other “pre-mediation” and “post-mediation” function.
What had not fully taken hold prior to Covid-19 was holding actual client mediation meetings and mediation trainings online. Sure we would send correspondence and drafts and make occasional phone calls to mediating parties, but the need to have mediators and participants physically get together had been a relatively unexamined assumption of mediation practice and mediation training.
With the Covid-19 pandemic, the mediation profession was forced to ask ourselves, “What is our ‘Plan B’ for meeting and training if we are not able to get physically together?”
Fortunately, among the most recent online technical developments for mediators and professionals were “Zoom” and other comparable “rich media” (online audio and video) platforms. Zoom and the other rich media platforms (GoToMeeting, BlueJeans, Microsoft Teams, Lawyerly, Skype, WebEx, Google Meet, Samba, WhatsApp, etc.) have allowed for an online mediation revolution.
Historic face-to-face meetings have now been replaced by Zoom and other capable rich media platforms. In fact, Zoom and its analogue platforms have proven to be a rather remarkably effective surrogates for forbidden face-to-face meetings during the pandemic. We can find no reason to think that this effective and affordable use of online platforms will go away or perhaps even lessen following the current pandemic.
In sum, it has been a combination of 30 years of incremental, accelerating online technical development, plus the fortuitous development of easy-to-use rich media online platforms like Zoom (that are “almost as good as being there,”) that have allowed for the present near complete movement of mediation and mediation training online.
While some mediators and trainers are understandably concerned that the new online meeting environments are inferior to face-to-face meetings, when the only true option is no meetings at all, the new online meeting environments, while imperfect, must be seen as a miraculous development for the mediation field and many allied professionals as well. We are now in position to bring capable mediation services and the best of mediation trainings to any computer or smart phone on planet earth. This dramatically elevated access, convenience, affordability and safety of online mediation and online mediation training is a “game changer” for the field of mediation.
Online Mediation Services Overview
“Online mediation is now mediation, and mediation is now online mediation.”
As noted, the effective development of online capacity really began with professionals and the pubic acquiring internet-based email addresses. Overtime, email addresses have, as both a practical and legal matter, become the most accepted and used means of communicating individual notices and content. This is now generally true for courts and agencies, and not only in North America, but globally. Of course, emails can effectively carry with them virtually any digital file as an “attachment” and provide links to either public or confidential and secure web content. Further, mediators and other professionals now well recognize the promotional and educational value of websites for describing their offerings, providing complete background information, testimonials, unlimited education, introductory videos, contact forms, automated scheduling and more.
In fact, nearly every aspect of mediation, other than the face-to-face meeting, had already been digitized and moved online prior to the Covid-19 pandemic. It is not far off to say that nearly the entire “front-end” of acquiring a mediation case and arranging for a mediation meeting had already been refined online prior to March 2020. Further, nearly the entire “back-end” of a mediation (all communications following a presumed face-to-face mediation) had also moved nearly fully online via email and other platforms prior to March 2020. This “back-end” online support includes online correspondence, settlement drafts and track changes, PDFs, online signing, online payment, online satisfaction surveys, etc.
So, the fact that there had already been 30 years of incremental, accelerating development of online capacities for mediators and the public, satisfying nearly all pre-meeting and post-meeting needs, was a fortunate context within which the mediation profession responded to Covid-19 with Zoom and other new rich media meeting platforms. We quickly learned that Zoom and its analogue platforms can capably, even if imperfectly, serve as surrogates for our historically cherished face-to-face meetings.
While it was recognized by some, maybe even most, that “meeting online” is “sub-optimal,” and that face-to-face meetings are for many preferred, when the only option is no meetings at all, Zoom and the other meeting platforms were quickly understood by all, both professionals and the public, to be near miracles compared to no meetings at all.
Simply stated, without Zoom and the other rich media platforms, combined with 30 years of incremental online development, many mediators and mediation trainers would have gone out of business over the past year. Most importantly, people would not have had, nor would they currently have, assessable opportunities to resolve their disputes. It is not a far reach to say that online mediation and online mediation training have “saved” the field of mediation.
With the pandemic, there was also an unprecedented “technologic mass training event” for both professionals and the public getting used to using Zoom and the other new online meeting platforms. People quickly learned how to use email to send online meeting invitations, including secure meeting links so that the meetings became a simple click away. We have also caught on quickly to such things as how to mute and un-mute, how to turn our cameras on and off, how to use backgrounds and filters, how to chat, breakout rooms, and more.
In this remarkable context, where nearly all mediation and nearly all mediation training worldwide has been online for the past 18 months, it is the Task Force’s prediction that the world of mediation will now be primarily online for years to come. While it is expected that some mediators will go back to meeting in person when the pandemic clears, it is equally clear that as many or more mediators will continue with online mediation as their primary means of offering services and taking mediation training.
“It is not the mediators who will lead in bringing technology into the mediation process — it is the parties who will insist that it be included.”
Notably, even if a mediator is to now or in the future meet with parties face-to-face, that mediator will still want to do “all of the right things online” in support of the mediation effort. In fact, the issue is not whether a mediation is an online or face-to-face. ALL mediation cases are now online cases to a substantial extent. Even if participants do not meet with the mediator online, follow-up letters, drafting and editing of settlement agreements are already routinely performed online. The real choice in the future is whether participants and mediators feel the need, in addition to their online communications, to get physically together to resolve a matter. Increasingly, we predict, many parties, in fact most, will come to prefer to resolve matters fully online for reasons of access, convenience and cost.
As noted below, initial surveys show that more than half of professional mediators currently intend to practice mediation exclusively online following the Covid-19 pandemic. Perhaps even more notable is that more than half of surveyed mediation clients have indicated a preference for online mediation. See such articles as:
Mediators Like Online Mediation And Other Verifiable Facts
by James Claxton
Live or virtual? Is the Future Here to Stay? Born of necessity. Driven by ease
by Louis Chang
The Remarkable (And Often Very Surprising) Benefits of Virtual Mediation
by Eric R. Galton
Virtual Mediation: An Enhanced Process or an Ephemeral Solution?
by Bruce Edwards
Using E-Mediation and Online Mediation Techniques for Conflict Resolution – Technology makes online mediation and professional dispute resolution more accessible
by Harvard Program on Negotiation Staff
They Said It Couldn’t Be Done – Mediation Training Online
by John Sturrock
Yes, IMI will be recognizing training conducted entirely online
by Laura Skillen
June 2021 NADN Membership Survey Results
Compelling data on the acceptability of online mediation was recently compiled by the National Academy of Distinguished Neutrals in NADN’s National Survey of Members conducted online June 17-30, 2021. See https://nadn.org/marketing/uploads/NADN-2021MemberSurvey-FinalReport.pdf. NADN had a response rate of 782 out of 1160 total members (67%).
Over the past 12 months and averaged out across the nation, a mean average of 91.6% of cases were convened online, with less than 9% in-person. While that 9% figure is already rising as restrictions are lifted and we emerge from the worst of the pandemic, the following survey results suggest it will not regain majority status. According to NADN, “In all likelihood, there’s no going back to the old normal. The Zoom genie has left the bottle and has no intention of returning.”
Only 11% of NADN members nationally reported that their settlement rate had declined somewhat mediating cases online. 82% of NADN members have a clear majority of their cases scheduled into 2022 set to be completed online.
Another big takeaway from the NADN Survey is that litigators and adjusters (aka, “customers”) are now fully awakened to the huge time and cost efficiencies of ODR – and they’re generally not in a hurry to return to in-person mediations. The Survey reports that some parties say that they’ve found that their cases are more effectively presented online due to the powerful screen-share functions. Parties also reported that they appreciate that key decision makers really have no excuse now not to attend the session, with others saying that the parties are actually more engaged in the process.
Also notably, 88% of NADN survey respondents reported that their settlement rate online was the same or better than meeting in-person! A clear majority of NADN members also reported that they had increased their client base to include folks that were outside of their local area.
Online Mediation Services Summary
The marketplace has thus recognized that online mediation has certain advantages over a reliance on physical meetings in terms of ease of access, convenience, scheduling and affordability. Online mediation can be more easily accomplished without parties needing to take off work, get child-care, waste time and money driving through traffic, or our needing to heat and cool expensive office buildings. In fact, one of the most compelling aspects of online mediation for the future is that it is so very “green!”
As mentioned above, the fact that so much technology and know-how have been developed over 30 years to allow for effective online mediation does not mean that mediator practice and ethical standards have kept pace. In fact, and rather remarkably, nearly all currently operative mediator practice standards were developed at a time where the Internet either did not exist or was not recognized as worthy of consideration.
One of the Task Force’s conclusions is thus that various mediator ethical practice standards need to now be updated and expanded to best support online mediation, whether online communications are in real time or asynchronous, and whether they are text, image, audio or video. In addition to updating our understandings of confidentiality, transparency, and disclosure in mediation, issues of privacy and security also now need to be directly addressed.
Online Mediation Training Overview
“Regarding training, the technology allows us to transcend borders.”
In addition to the focusing on issues of how can mediators best offer online mediation services, the Task Force also focused on the many issues of online mediation training. One issue, for example, is whether historic 30 and 40 hour “basic mediation trainings” should be reviewed and updated to address the myriad of online mediation issues. Rather remarkably, nearly all current mediation training standards do not currently include any specific focus on online mediation.
Further, there are the questions of, “what makes an effective mediator generally?” and, “what makes for an effective online mediator specifically?” The Task Force notes that the more general question of “what makes an effective mediator generally” has itself never really been historically resolved (what are the “specific skills criteria?”). Whatever these historic skills are, they surely must now be complimented by mediators developing online facility with their interventions on screen as well as their use of technical platforms. The Task Force notes that mediating online is simply not the same as mediating in person. For example, the mediator must ensure that each individual participant is comfortable with the communication technologies being utilized, whereas, in “face-to-face” mediation, participants simply need to show up at a certain physical place at a certain designated time.
As a further example, the development of rapport online is different and more challenging. There are also likely differences online in terms of the relative balance between joint and individual caucus meetings. Meetings are also commonly shorter and more frequent online. All of this elevates the value of effective online scheduling software.
Still further, there is the question of the extent to which a mediator can satisfy evolving mediation training requirements, be those requirements for face-to-face or online mediation, with online mediation training, as opposed to face-to-face mediation training. Most mediation training standards were developed at a time when the ability to obtain online mediation training was not even recognized! Overtime, more and more mediation training has moved online, with quality online educational offerings now being offered by a variety of providers.
Training requests have increased with the online training option. A part of the reason has to do with the ease of training online. You don’t have to book a meeting room and get a caterer. You just push a button. Online mediation training has simplified the offering and taking of mediation training.
Critical mediation training questions exist for both face-to-face mediation and online mediation. For example, to what extent can a “face-to-face mediator” be trained online? Also, to what extent do these trainings need to be “live,” as opposed to recorded? Further, can training experiential requirements also be fully met online? What about for an “online mediator” who wants to offer nothing but online mediation services? Does it make sense to require that an online mediator be trained face-to-face? Can an online mediator satisfy all of their training requirements online? If not, why not?
Still further, what new training opportunities exist online for both face-to-face and online mediators? For example, with Zoom, it is rather easy to record training participants (often in breakout rooms) for purposes of providing highly specific individualized video feedback. Beyond this, the online environment now also offers satisfying new opportunities for ongoing webinars, “cohort” learning groups, mentorship, apprenticeship, case consultation and clinical learning opportunities. Thus the Task Force has examined not only online mediation skills and training, but also how the online training and experiential environments can best be utilized to improve all mediation practice, both face-to-face and online.
“You can't connect the dots looking forward; you can only connect them looking backwards. So you have to trust that the dots will somehow connect in your future.” ...By Peter Salem