In the past year, the use of technology in Alternative Dispute Resolution processes has been widely discussed: the spread of communication technology, the introduction of Regulation from the European Union concerning Online Dispute Resolution for consumer disputes, and the Briggs Reportdiscussing potential Online Courts are only a few examples of it.
Modern tools are already being used in mediation for the convenience they offer. Moreover, with the quick spread and evolution of these tools, increasingly technology-friendly clients are asking for access to Online Dispute Resolution either to carry-out or to facilitate the process.
Nevertheless, as useful as it can be, technology also brings number of challenges for dispute resolution professionals, and thus they should give some consideration to the risks compared to any benefits to avoid the pitfalls of becoming over-reliant on any one form of technology.
Confidentiality can be less clear in an online setting. Whilst in a face-to-face meeting, it is obvious who the parties are and confidentiality can normally be confined to those who have committed to the process, in an online dispute resolution process, these lines can be blurred. Parties may be doing other work; attempt to involve people who are not part of the mediation or even record the conversations between the mediator and party. Clear ground rules need to be thought about here by the mediator as to how to ensure that confidentiality of the process is observed.
Similarly, one of the fundamental benefits of face-to-face mediation is its ability to get parties (sometimes reluctantly) to recognise that the other party has engaged in a settlement process and to encourage reciprocity and commitment. Online technology has a tendency to diminish some of this human connection – seeing a person on a computer screen is less human than seeing them in person and there is considerable research about how people make less positive offers when they are not face-to-face. A mediator needs to think about this lack of personal connection and how to counter it.
Further, there is a rise in technology being used post the mediation day as a way to finalise settlements. Whilst this is obviously practical and saves the expense of parties coming back together, there can be a danger with such protracted correspondence where a mediator loses the unique qualities of the mediation process and the dispute drags on or becomes more entrenched rather than getting resolved. Again a mediator needs to think about the ways in which technology can be used to enhance the process rather than let it get dissipated.
To help mediators with these issues, CEDR has created advice for mediators to consider when preparing to use online platforms or the telephone to conduct part(or all) of their mediations. The advice is not intended to be prescriptive but should enable mediators to think about the practical issues that can arise and how to resolve them, covering points such as ground rules, ways of dealing with issues that arise and how to use technology before, during and after the mediation.
By Joachim Müller