The transformation of technology and how we interact and use it is unrecognisable from even 10 years ago. Industries spanning all sectors, including legal and Alternative Dispute Resolution services, have not escaped the reaches of this rapidly changing technological revolution. The use of technology in ADR is growing fast and changing the way users interact with the legal process. How we access dispute resolution services and how mediators manage the information during a case is evolving too with an example of technological innovations aiming to improve and streamline mediation processes; reducing costs and increasing accessibility.
At the recent Dispute Appointment Service Convention in London: Technology and ADR – the Risks and Opportunities the panellists and attendees discussed the practical implications of developments in technology, shining a light on what the future holds for ADR. This has helped CEDR to look again at what technology may mean for mediation in particular.
Lord Justice Briggs – who also opened the conference – championed Online Dispute Resolution (ODR) by in his Civil Courts Structure Review in 2016. ODR can assist with access to mediation, relocating the entire process online. The UK and over 50% of the world’s population now have access to the internet. Compare this to those who have access to legal representation and advice as well as the legal process and the number is drastically lower. Online mediation also provides an easier way to resolve cross-border disputes. By bringing mediation online, the cost may drop as well as enabling parties to engage in the process. As they that might have otherwise struggled to attend a traditional court hearing. Yet if parties do choose to mediate only via an online system they will lose the opportunity to interact face-to-face, to build rapport and credibility – a point we will touch upon later.
A matter of choice
Although there is a wealth of options available, it is still the mediator’s choice to incorporate technology into a commercial mediation. The mediator can use as little or as much technological support as they would like. Technology used by a mediator can range from video conferencing parties during the mediation, utilising electronic signatures for the mediation settlement or software, such as AI (Artificial Intelligence) to support the mediators’ preparation through information management during large and complex cases. When used with confidence and for a specific purpose, technology can provide unparalleled support for mediators and parties. Technology can get the most out of the mediator and parties, and help streamline the mediation process ultimately making it more successful.
Technology, for all its benefits, poses risks. For many parties, a serious concern is the confidentiality of information and of the process. Confidentiality is a cornerstone of mediation and many choose to mediate because of this reason alone. If there is a risk or even a perceived risk to the confidentiality of the mediation, parties may be driven away. An interesting point made at the conference highlighted that transferring information securely over email or file-sharing services is safer that couriering the files from one location to another; whereas the traditional method, challenging common held perceptions about the security of digital information.
For the most part, cybersecurity concerns can be managed through simple methods, which many individuals and businesses already adhere to, by not sharing information through insecure email servers and public file-sharing services for example. Not only should mediators be using secure emails for security purposes it is also a hallmark of professionalism to offer a private email rather than a standard Hotmail or Gmail account, for example. However, mediators and parties should not be complacent and take all appropriate precautions when necessary, such as encrypting case files and sending files through insecure channels.
Balancing the nuances of the mediation process and technology will always be a challenge. We do not want to lose the interpersonal experience and relationship building aspect that are so integral to mediation, accounting for its success and high user satisfaction. Technology has a reputation of removing the humanity in interactions; mediators must balance technology and the human component of the mediation process. Without personal interaction, it is hard to negotiate, which could be detrimental to the chances of reaching a settlement.
Although there are risks, as with many things, the risks posed by the increased use of technology can be managed and, as technology develops further, the risks may reduce and continue to do so. It may now become the mediator’s job to embrace the available technology and even become an advocate for its appropriate use. However, the success of this technology rests on the ability of mediators to use it confidently and effectively. There are many opportunities; those in control must be prepared to manage it and any changes that come with it.
Read CEDR’s Guidance on Technology for Mediators.