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.
I had the opportunity this week to watch some of the Hewlett Packard v. Oracle Corporation trial in the California Superior Court, Santa Clara County, Case no. 1-11-CV-203163. The case results from a failed settlement in Hewlett-Packard Company v. Hurd, SCCSCT Case No. 1-10-cv-181699. That case was dismissed with prejudice on September 22, 2010 following the execution of a written settlement agreement.
This paper will address the use of online technology to overcome impasse in dispute resolution. Since all dispute resolution is an exercise in communication, we will examine how internet technology either aids or impedes efforts to exchange information and reach understanding. Then we will look at the actual technology now being employed and how it works to overcome specific types of impasse.