The 1990s brought about the first Online Dispute Resolution systems (ODR). Since that time, ODR has experienced significant growth. There are a wide range of concepts which fall within ODR. The earliest forms of ODR utilized internet-based communications, like email, as well as blind bidding to resolve relatively simple disputes involving financial transactions. As tools and technology progressed, ODR became widely employed in low-value civil disputes, and currently, it is extending its presence in other areas of law – such as family law. While today there are several virtual mediation online websites to choose from, most are nothing more than sophisticated communication systems – either by employing trained mediators that use a secure chatroom-like system or software that supports various forms of cyber-mediation techniques (blind bidding, automated negotiation, automated settlement systems, or assisted negotiation). For a complete list of virtual mediation websites, you can visit the National Center for State Courts website ( https://www.ncsc.org/odr ). This article will narrowly focus on mediators that are providing traditional mediation services in an online environment, including the advantages/disadvantages of video conferencing and additional tools available to realize its full potential. This topic is especially relevant today, given the Covid-19 pandemic and how many jurisdiction are requiring that litigants exclusively use ODR to comply with local and state social distancing regulations.
For mediation to work effectively, irrespective of the context (traditional in-person mediation or ODR), the parties must establish trust with the mediator. However, trust has two distinct attributes: trustworthiness and competence. Both need to be present to develop a working level of trust. Without trust, there cannot be transparent communications, and deep-rooted emotions from the dispute can easily overshadow critical thinking. Unfortunately, it is much more difficult to gain trust in the virtual environment of video conferencing. A set of experiments conducted by Rockmann and Northcraft (Rockmann, 2008) focused on deception and trust formation among video conference groups and in person face-to-face groups. Rockmann found that the video conferences had higher occurrences of lying and defection (actions benefiting only the self to the detriment of the group). They hypothesized that this behavior was not due to a lack of desire to cooperate, but rather a lack of knowledge of the other’s intentions – suggesting that trust can still be achieved if people are more deliberate in communicating their intentions when not working face to face. While the concept of trustworthiness does not change much in a virtual environment (the mediator should be perceived as impartial, ethical and able to maintain party secrets), the concept of competence is more affected because of participant’s anxieties with the video conferencing technology and the potential issues that can arise in it’s use.
Benefits of Videoconferencing in Mediation
As a result of the pending World Covid-19 pandemic, there is an increasing need to mediate disputes using videoconferencing. In addition, ODR has been highly effective at solving the problem of physical distance between participants that are located throughout the World. Videoconferencing has become a simple and relatively inexpensive solution to both challenges. Mediators and their clients need little more than a free downloadable app on their computer or smartphone and an agreement with their chosen mediator to link up at a certain time and date. Videoconference mediations have many of the attributes of an in-person mediation but without the cost and expense of the parties’ travel and waiting time. On its face, videoconferencing might seem to be a win-win mediation strategy with all the advantages of face-to-face meetings and relatively minor comparative costs. However, there are some significant limitations that require smart strategies and tools.
Disadvantages and Limitations of Videoconferencing in Mediation
One of the main limitations of mediation through videoconferencing is that building trust with clients takes more time than in-person mediation. Online mediation, whether by phone or videoconference, can cause the mediator to have insufficient control over the participants, due to difficulties in interpreting their emotions. This lack of control and understanding are primarily due to limited visibility (Austin, 2017). When videoconferencing, we see less of the other person and their environment than we do when mediating in person. In fact, we typically appear as “talking heads”, since computer cameras are located either at the top of the screen or very bottom, when we stare at our screen we appear to be looking downward or upward. Over the past decade there have been several studies that have demonstrated the connection between trust ratings and eye gaze. When you add in the circulating news about security and privacy issues, as well as potential technical issues that might arise during the session, this can become a barrier to quickly building trust and rapport.
The good news is that according to other video trust studies, it is possible for people using video communications to achieve similar levels of trust as people working face-to-face, it just takes more time to achieve than face-to-face meetings.
A review of software tools on the market that support mediators performing online mediation yields extraordinarily few results. Other than videoconferencing and a hand full of blind bidding tools for simple financial transactions (e.g. Smartsettle™, Cybersettle™, and ebay’s SmartTrade™), little exists to directly help the process of ODR mediation.
For online mediation to work effectively, there must be a sense of mutual trust established, a clear reading of client priorities, and a firm grounding in the risks and realities of litigation. NextLevel™ Mediation’s cloud based D2S Portal™ can provide tremendous support in this area.
The tools from NextLevel™ Mediation’s cloud-based system allow the mediator, through a simple and easy to use interface, to collect critical pre-mediation information. A simple questionnaire generation tool facilitates the collection of general dispute information from clients and a decision-science based assessment tool helps the mediator understand a client’s prioritized objectives. In addition, there is a litigation risk assessment tool that allows a client and his/her legal representation to experiment with different litigation scenarios and their respective payoffs and probabilities. Early feedback from mediators and participants that have used these innovative tools in ODR mediation indicates that trust and competency are more speedily achieved – in large part due to the participants belief that the mediator has a clear understanding of their priorities and mediation goals.
Austin, C. (2017). Online dispute resolution – Summer Research Scholarship Programme 2016/17. Government Centre for Dispute Resolution .. New Zealand.
Rockmann, K. &. (2008). The influence of media richness on defection and deception. Organizational Behavior and Human Decision Processes, 106-122.
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