28 Jan 2016
Online Dispute Resolution - Issues and difficulties to prepare for
In a previous article, we talked about the arrival of ODR. Technology in different forms is already being used in dispute resolutions for the convenience it offers. Yet with the quick spread and evolution of these tools, increasingly technology-friendly clients are asking for access to Online Dispute Resolution. Thus it is important to start asking difficult questions to better prepare practitioners and users to achieve the best process outcome from this new form of dispute resolution. A number of the technical and ethical issues were discussed during the recent debate at our Exchange Forum of 9 December 2015 at Bird & Bird in London.
There are several dilemmas that using technology can cause. These range from the practical but time-consuming (will the technology actually work?); through to the unlikely but possible (is there an increased risk of data theft and personality impersonation and other issues?); through to the more profound/fundamental (does dissonance in technological familiarity affect equality between the parties?); is a lack of face-to-face contact going to affect how the mediation concludes and whether settlement is possible?; are settlements likely to be less sensitive or bespoke than if they were formed face-to-face?; how solid is a commitment made in this way?.
When using technology, a difference in levels of knowledge can quickly be a source of imbalance. Some are much more at ease with technological devices than others (someone may reply all on email but accident or cut off a call rather than mute it). From one country to another (or even one part of a town to another) the broadband can be slower, and make the process difficult to follow. We can then wonder to what extent the parties will have to deal with such problems. Which technologies should be used? How will those inequalities of IT proficiency impact the Dispute Resolution process?
This issue also need us to look at technology for what it is; often a convenience tool to aid communication rather than the be-all-and-end-all. Just because one party wants to use a certain type of technology does not mean that the other party has to necessarily agree. These differences could then be source of more conflicts – which would be an irony for a dispute resolution procedure. A new question arises: Should we allow different ways of attending the same process? If one party is in the mediation room and the other on a screen, will the relation with each other or the mediator be impacted?
These are some of the toughest question because they can be out of the hands of the mediator. The mediator will have to be sensitive to the parties’ needs but must ensure equality of treatment for both. An easily accessible platform might help facilitate ODR and not requiring much knowledge of computers.
Identity and good faith
The internet has a strong culture of anonymity. We are protected behind an avatar, a screen, distance, etc. How then can we ensure that the person speaking really is who s/he says s/he is?, even when it is a party or the mediator? Just because we have not heard of this happening in a mediation it does not mean it will never happen. If we consider ODR without oral communication (telephone or video), don’t we also expose ourselves to mediation scams who would offer cheap “dispute resolution” with terrible service or completely non-human automated solutions? This may seem farfetched but most of us have already received scam mails from pseudo-lawyers, insurances, banks, etc. offering “cheap service”.
This question is also real for face-to-face mediation, but online the risks are higher. Vigilance and awareness will have to be raised when ODR comes to the fore.
The Dispute Resolution Process
The good news is that mediation is an adaptable process, and it is likely that changes to process will have to be made to ensure a safe procedure. For example it will be important to guarantee confidentiality online. The discussions can be much more easily be intercepted over the web, or even overheard by someone else outside of the camera range. Same problem goes for the exchange of documents. How can we always make tranfer secure?
We can also wonder how the agreements will be formalised. Can a signature be electronic or must it be physical. Here again, what some parties prefer might not be accepted by all.
Then there is the organisation of the mediation day to consider. How should we organise the rooms? Can there be a lawyers physically present but their client represented on a screen? At what point does a mediation not need three separate rooms? Is the presence of an IT assistant necessary? How can the mediator cope with his own difficulties to use and interact with technology?
Many of these questions are fairly technical and must be thought of by mediators and ADR providers before developing their use of ODR. According to their style, their practice and the different needs of their clients, they will have to prepare for these issues. Leaving arrangements to “luck” exposes the parties to a missfunctionning process.
Relation – Rapport
The mediation process is built around certain key-elements. One element that will be strongly impacted is building rapport between the parties and with the mediator. A dialogue, a negotiation through a screen as compared to face-to-face is very different. Communication is aided by interpreting body language and you lack the experience of encountering the other party and building a (even short-term) relationship without a physical meeting. Moreover, the “protection” that the distance and media offers can impact the parties’ commitment to the process. There is a limited loss of face – it is easy to mute the computer, hide the camera, or just hang-up. It becomes much harder for the mediator with no physical presence to keep the parties at the mediation.
Our society has already proven itself capable of adapting social behaviours to different online media. Take the example of Online Dating sites. It is true that no one has ever held hands through an app, but this kind of ways to start dating were seen impossible and crazy only ten years ago. Users have found ways around and they are now very common and socially acceptable. We have learned to build rapport through machines. If there, why not in mediations?
From the perspective of a mediator, technology may well have an impact on their practice. Most have been trained for face-to-face mediation - reading the room, observing body language, building rapport, etc. cannot work the same way with online tools. A mediator is always going to have to adapt to the ways that the parties work, yet does that mean that a mediator has to be a technical person or deal with any technology that the parties request? If the mediator cannot fully practice their skills, are they still mediating or just conveying messages?
CEDR’s Exchange Forum are a fantastic opportunity to exchange ideas and prepare for what the future might hold for mediation. Yet these questions are likely to be around for a while still, as ODR is not yet common practice. Mediators must be prepared for the use of greater technology, but those who seek their assistance will always have the choice to attend an authentic mediation process.
Any ODR brought in by the EU Directive this year will allow small consumer claims to be dealt with online and this may well be useful. These cases can often require little negotiation, and technology may facilitate and accelerate settlement. When ODR will be requested in larger commercial cases, involving emotions, contracts, matters of law, previous relationship between the parties, etc. the issues raised may become far harder to “phone-in” and need an on-site presence to work through.