The ODR Pro’s
Savings & convenience – many of the costs attributed to face-to-face mediation can be alleviated via the use of an online platform. These include:
- Travel costs and time: especially for rural or overseas based parties.
- Down time: parties waiting for the next mediation stage can more easily take a bathroom/meal/fresh air break, freeing up headspace for creative thinking.
- Room hire: there is no need to hire neutral rooms, or venture onto perceived enemy territory, lessening the anxiety many parties experience at such prospects. Accidental encounters on breaks are also eliminated.
- Business disruption: are minimised as parties and representatives can participate from their business/office.
- Family (childcare) and special circumstances (such as mobility or health restrictions): are more easily accommodated for those who join from the comfort of their own home.
- Delays: access to documents/information may also be avoided, as they are more readily on hand and do not need to be transported, also reducing the risk of needing to adjourn the mediation.
Flexible – ODR can be set up at short notice, at convenient times, which reduces the scheduling difficulties often encountered by face-to-face mediation.
The ODR process itself is also very flexible, with the use of breakout rooms, private caucus and joint sessions easily facilitated/managed. For those with varying IT access or other constraints such as time, a combination of online, telephone conference and in-person mediation may also be utilised.
Can reduce emotional barriers – negative emotions such as fear, mistrust, confrontation, stress and anxiety are lessened significantly, as are bravado and impulsive reactions (from my experience) via an ODR, giving way to an improved environment for discussions around issues, interests, needs and solutions.
Moving online and physically separating parties can help diffuse tense situations, which leads to less cognitive/emotional overload and can allow for clear thinking and problem solving.
Parties who may have otherwise remained silent during a joint session in a face-to-face setting often find a voice from the comfort of their own environment.
Vulnerable parties are also able to participate utilising audio only, without their video connected, to reduce any negative impacts (ie. defamation or abuse related cases).
The ODR Con’s (but easily overcome)
Less Personal: there is no doubt that ODR reduces the personal, human element of face-to-face mediation. Building trust online requires a special skill set. However, much of this can be overcome with the careful selection of your mediator, ensuring they are someone whose qualities and skills you can draw upon to overcome this.
Reading the Room: it is definitely difficult, if not impossible, to read what you cannot see, where perhaps a party is not visible via the video function, but rather Counsel or the representative takes front stage.
However, a skilled mediator will request access to the parties via video when appropriate to facilitate their ‘read the room’ senses, and be able to do so effectively. The key will be sourcing a mediator who can not only ventilate the issues, explore the solutions to the dispute, but also who can engage and captivate the parties and representative’s attention, all whilst maintaining high level listening and observation skills.
IT limitations: there is no doubt that those with limited tech skills find ODR more difficult; parties, mediators and practitioners alike.
However, with improved systems, broadband and an increasingly tech savvy world it is likely this barrier will be reduced to a bare minimum overtime. Much of this can also be solved now with a gentle guiding hand from a sufficiently skilled mediator or support team, or ahead of time preparation, or the use of phones and eEmail.
Confidentiality: this has commonly been put forward as a roadblock to ODR in the past, however, look at how we all overcame this during the past 18 months. Requiring parties to log on from a secure and private space, ensuring a mutual commitment to no-recordings, careful use of the screen sharing function or alternatively using email for the exchange of information or terms instead, are all methods which can be used to reduce this risk.
I see confidentiality as more of a concern – rather than a con – that must be given careful consideration to any form of mediation, but can also be overcome by repeated commitment verbally and in writing, prior to, during and at the end of any ODR mediation.
Distractions: ensuring that parties and representatives (and mediators) do not become distracted by their environment (business, home, emails or other work) to the detriment of the mediation process is equally important and can be made more difficult via ODR.
This requires careful handling and expectation setting by the mediator, as appropriate. Although occasional background interference, pets/kids can certainly provide light relief via shared humour as we all saw from the multitude of related social media shares during 2020.
Additional ODR tips & traps
- Test and consider tech access and capability of yours and that of your clients, in advance of the mediation (audio, video, internet, printing/scanning capabilities).
- Familiarise yourself with the platform being used if you’ve not used it before (locate the mute function, ask for help button).
- Exchange contact details, email and mobile, with your mediator and client ahead of time in case of internet problems.
- Choose your mediator carefully by finding a good fit/right balance of personality, areas of expertise, tech and people skills to suit the needs of your dispute, the parties and practitioners.
- Don’t panic, if you have taken all of the steps above into consideration and the ODR platform doesn’t work for you or your client, the use of mobile phones via speaker or connection from the mediator’s end can resolve most issues.
- Don’t hide away from the process. No mediation process, online or otherwise, will work if all parties are not committed to it.
- Consider how you will record any agreement reached ahead of time and have something handy.
During 2020, I mediated over 100 mediations online, achieving a 90% success rate. It is this experience that leads me to believe that ODR levels the playing field and will remain part of every mediator’s toolbox (as well as a pair of ugg boots!).
I look forward to hearing your comments and experiences.
References
- Face to Face dispute resolution and Online Dispute Resolution – which is preferred? Dr Emilia Bellucci, Deakin Business School, Resolution Institute (2021).
- The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites, Joseph W. Goodman, Duke Law & Technology Review (2003).
