Technology can be used to overcome impasse in dispute resolution.

Since all dispute resolution is an exercise in communication, I’d like to examine how internet technology either aids or impedes efforts to exchange information and reach understanding.

In traditional ADR, the participants appear in person, where they can communicate both verbally and nonverbally. Impasse may arise when persons look or sound different. The parties interact in real time, syn- chronously. Parties often heavily rely upon body language to interpret the words being said. The process is customarily confidential, and par- ties often agree not to share the comments made in the mediation room with persons who are not present or not integral to resolving the dis- pute. Online, however, there may be no view of the persons who are communicating. The communication may be entirely in written form.

The sending party and the receiving party may not be communicating at the same time. There may be no way to know who is reading the messages or how the language that is being used is being received. The assumptions made about common knowledge may not be correct. And the written statements may be communicated in a public forum.

In traditional mediation, the mediator will assist the parties to focus on their underlying needs, not just their positions. The online pro- cess may use mathematical algorithms to sharpen the parties’ focus or reach a resolution. Traditional mediation has been reliant upon the parties to produce the factual information necessary for understand- ing, and impasse has been reached due to the unavailability of criti- cal information. Technology now makes access to reference materials instantly available.

With modern technology, it is possible to reshape the mediation envi- ronment to promote the parties’ movement toward resolution. The place to begin is to understand the various types of online communication that are available and then choose which combinations of types of com- munication will best aid you to resolve your particular type of dispute.

Where Impasse Is Caused by Distance

In Certain Static Random Access Memories and Products Containing Same, US International Trade Commission, Order 14, Inv. No. 337- TA-792 (November 22, 2011), client representatives were forced over objection to attend a court-connected mediation in person. The judge felt that it was critical to the success of the mediation to have in-person participation of the decision makers in order to not only facilitate communication, but also to identify and overcome issues that may create an impasse to settlement. However, by requiring physical presence rather than using technology to facilitate the communication, the judge may have been creating a new impasse. It may be difficult for parties who are geographically diverse to physically meet together. When parties are forced to travel to engage in mediation, they may arrive aggravated and seeking recovery of the expense involved. Technology combined with sensible attendance requirements provides a solution.

The quality of communication by videoconferencing today is almost as good as that among persons in the same room. Medical doctors are using Cisco’s Telepresence to diagnose patients located far away from them. Certainly then, Telepresence should be adequate for medi- ation as well. Other videoconferencing products are being used by the U.S. Merit Systems Protection Board and are found to be adequate. I have even used Skype, a virtually free service, to mediate some cases.

To enable the video communication remotely, the parties should have the same attendance requirements as if they were physically in the same geographical location. They need to stay in the line of sight, lis- ten and respond to what is being said. If they do, they can be as fully engaged in the mediation process across the country or the world, as if they were in the same room.

Technology can manage the dispute resolution process and set the agenda for negotiation, guiding the parties toward resolution. Online negotiations can parallel face to face negotiations by putting the par- ties into an unstructured communication environment, simply using technology as the communication for a traditional mediation process, as I have done by having the parties participate by videoconference.

Technology will allow asynchronous progress in negotiations. Parties can make their moves online, log out and wait for the other party’s re- sponse. Online negotiations can change the nature of communications so that a party who would not speak up in a face-to-face session may feel more comfortable providing input in writing.

ODR providers are developing automated dispute resolution proce- dures, which use algorithms to drive the negotiation process. Online automated processes can create a structure for the negotiation, focus the deliberations on the central issues in dispute, and eliminate postur- ing and delay tactics.

Overcome Impasse by the Value of Reputation

A new online dispute resolution service, Peopleclaim.com, facilitates settlement in cases against product or service providers, professionals, or anyone else whose reputation is important to them. The company operates as an internet service provider, posting publicly all claims that remain unresolved after 30 days.

This service can be used without a lawyer or mediator. Peopleclaim will help locate the respondent’s email or mailing address where the claimant doesn’t have it. Peopleclaim serves the claim on the responding party.

The respondent may accept the claim terms, reject them, make a coun- teroffer, or add reasons for rejecting the claim that will be visible on any public posting. In many cases, a claimant will hear back immedi- ately from a respondent with an agreement to his terms, or a counter- offer. The parties can exchange offers and negotiate back and forth as often as they like.

If a claim is ignored or rejected, it will post publicly on the PeopleClaim Registry if the claimant selected the public posting option. Once posted, the claim becomes accessible to others via search engine queries, and visitors can view it along with others filed against the respondent. Public posting of the details and demands provides an ongoing incentive for prompt resolution of valid claims and allows others to comment or sug- gest resolution options.

If the claim is not resolved, or even responded to, until after the posting date, the claim will post. It will appear in the PeopleClaim Registry with any other claims against the same respondent. In some cases the respon- dent may choose to settle the claim only after claims from other parties have also been posted. Public posting can provide an ongoing incentive for settlement.

Parties are instructed to notify PeopleClaim if they settle outside of PeopleClaim.com, so that the claim can be removed from the system and not posted.

Overcome Impasse by Focusing the Parties

In all the ODR processes discussed herein, the process focuses the parties on possible solutions to the dispute. For example, in the Peo- pleclaim process, the claimant is asked what he wants for a resolution. If the proposal is accepted, that resolves the case. If both parties agree to a set of terms by clicking the “Agree” button, the claim is con- sidered resolved. Resolved claims will not post; if they have already posted, they will be removed from the Registry.

As part of PeopleClaim Terms of Use, the claiming party agrees that any settlement between the parties releases the respondent from fur- ther obligation without admission of guilt or liability. In settling a claim the parties are agreeing only to its terms and obligations. The mutually accepted terms of agreement can be added by either party. The negotiation process allows the parties to help shape terms that will be acceptable to them.

An agreement through the PeopleClaim system is generally consid- ered a legally binding and enforceable agreement. In the event that either party breeches the agreement, the other party may be able to enforce the terms of agreement though conventional legal channels.

There is a very high success rate for the PeopleClaim process for small consumer claims against large companies and for small claims against local businesses. The business benefits from the feedback that it receives. It can set up a google alert and know as soon as a claim against it is published. Every level of the corporation can have instant access to this information, so that problems can be addressed early at high levels in the company. Multiple claims involving a particular location or person can be easily spotted. And claims that might oth- erwise morph into a class action can be addressed in a global fashion by formulating a standard response to a particular problem, which, if accepted, will prevent a class action from later arising.

The following is a short overview of actual technology now being employed to overcome specific types of impasse:

- Overcome Impasse by Help from Third Parties. ODR is now incorporating crowd sourcing techniques in its dispute resolution processes. For example, At Peopleclaim.com, a claimant can request third-party (e.g. member of the public, participating lawyers, user with similar claims) help at the time the claim is filed. Similarly, eBay runs a Community Court to resolve disputes over negative feedback by putting issues before a jury of 7 unbiased eBay members. Commu- nity court system could be used in any on-line community to resolve disputes, such as standards organizations, licensing organizations, etc.

- Overcome Impasse with Solution Set Databases. When a partic- ular type of dispute is identified, computer programs can display a common set of resolutions to that type of dispute. This helps to focus the parties on solutions that others have found workable, particularly with consumer disputes. Where the online dispute resolution process permits human intervention, such lists aid communication by focus- ing the discussion on the types of resolution that are customary in that industry or field. For example, the U.S. Air Force publishes a list of potential solutions to impasse in employment disputes. Online Dispute Resolution Working Group convened by the United Nations Commission on International Trade Law (“UNCITRAL”), is working on reason and resolution codes to describe the exact nature of the dispute and the resolutions pre- ferred by the disputing parties which will greatly facilitate com- munication between parties who do not speak a common language.

- Overcome Impasse with Blind Bidding or Automated Arbitration. Blind Bidding takes the human emotions out of the dispute resolution process. It eliminates the pos- turing and strong egotism that can impede the traditional ADR and instead allows parties to focus quickly on the ultimate goal of a reach- ing a settlement that they find is fair.

- Overcome Impasse by Visible Bidding and Hidden Acceptances. SmartSettle uses a variation on blind bidding that uses some of the knowledge gained in face-to-face mediation. In the SmartSettle dis- pute resolution process, the parties must agree upon a Framework for Agreement before undergoing the blind bidding process.

- Overcome Impasse by Expedited Arbitration Processes. The American Arbitration Association Rules provide for an on-line expe- dited arbitration process. For example, at one company, once online arbitration has been commenced, AAA selects engineers to arbitrate the cases. The arbitrator communicates only online and without a hearing. The arbitrator reviews the documents that were uploaded, determines an award, and informs ICDR, which communicates the award to both sides online - no lawyers, depositions, witnesses or hearing dates.

Conclusion

There are increasing opportunities to employ technology in the deci- sion making process, releasing the time and money saved so they can be better used in the client’s business. This short overview does not exhaust the possibilities of what is presently available online to re- solve impasse, but is merely an introduction to some options that exist that are worth pursuing.

by Suzanne Nusbaum

For more details on the actual technology available to overcome impasse, visit www.adrtimes.com/articles/2012/3/16/using-technology-to-overcome-impasse.html

Suzanne K. Nusbaum brings 25 years of dispute resolution experience to her fulltime neutral ADR practice. A Fellow of the Chartered Institute of Arbitrators and a former judge, she has specialized expertise in resolving employment, entertainment, health care, and intellectual property disputes. She also serves on various ADR panels and volunteers internationally to teach students basic dispute resolution skills.