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.

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, synchronously. Parties often heavily rely upon body language to interpret the words being said. The process is customarily confidential, and parties often agree not to share the comments made in the mediation room with persons who are not present or not integral to resolving the dispute. 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 process 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 understanding, and impasse has been reached due to the unavailability of critical information. Technology now makes access to reference materials instantly available.

With modern technology, it is possible to reshape the mediation environment 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 communication will best aid you to resolve your particular type of dispute.

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by Suzanne Nusbaum

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.