Column

Mediating at a Distance: Will We Embrace the Challenge of Technology?

In his new book “Tomorrow’s Lawyer”, Richard Susskind claims that there are at least 13 “disruptive technologies” in law. A “disruptive technology” is one that fundamentally challenges and changes the functioning of a firm or sector (as opposed to supporting and enhancing current operational methods). He predicts that collectively these 13 technologies will transform the entire legal landscape.

He includes “online dispute resolution” or ODR in this group. He uses a very broad definition of ODR:

When the process of actually resolving a legal dispute, especially the formulation of the solution, is entirely or largely conducted across the Internet, then we have some form of online dispute resolution… For litigators whose work is premised on the conventional, court-based trial process, ODR, such as e-negotiation and e-mediation, is a challenge to the heart of their business.

In the long run, I expect it to become the dominant way to resolve all but the most complex and high-value disputes. For law firms and court lawyers, this is a direct assault on their conventional work. But it is also a great opportunity – to become a leading player in this new, currently uncontested, market space.

Mediate BC Society recently completed a 3-phase, 6-year study of the use of technology-assisted family mediation (the “Distance Mediation Project”). Funded by the Law Foundation of BC, the project tested the viability of technology-assisted mediation in family disputes. This was, to some, a surprising place to start as many practitioners believe strongly that family mediation, which almost always involves deeply held values and strong emotions, can only be conducted effectively using in person meetings in order to take into account body language, facial expressions, tone of voice etc. Just last week a senior Judge and strong supporter of mediation for families told me that technology simply could not work with the families she encounters every day who need the connection with a “live” person in order to work through the very difficult issues associated with separation and divorce (where are the kids going to live? what is the parenting schedule? how much should you pay for child support? how do we split the family home? etc.).

There is no doubt that these are often heart-rending issues and we know that mediation is often an effective process for such disputes. But what about separating couples who:

  • live in different communities and cannot afford to travel to attend in person mediation sessions?
  • live in communities that do not (yet) have appropriately skilled family mediators?
  • have developed such a high degree of animosity that they cannot function well in the same room with each other?

The question was: how could technology improve access to justice and provide viable solutions to families in these situations? The project tested teleconferencing and web-conferencing tools which were often blended with in person meetings to suit the special needs of the families. It found that family issues (such as parenting arrangements, child support, spousal support or property and asset division) can be mediated safely and effectively using tools including teleconferencing and web conferencing.

The project’s settlement rates, client survey results and mediator feedback support the viability and effectiveness of distance mediation.

The project also demonstrated other important benefits of technology-assisted mediation. Instead of finding that distance mediation was a “poor second cousin” for in person mediation, it showed that some families actually preferred this approach (even when they lived in the same community). In addition, it uncovered some unexpected benefits that are not available for in-person sessions. For example, it showed that web conferencing (through the onscreen videos of each participant and the mediator) can be helpful in “mirroring” to parties and the mediator their own behaviors – that is, it allows the parties and mediator to see themselves in real time, so that they can learn about and possibly change their own actions and reactions.

What about access to justice? While some of the families may have been able to access other services to assist them in resolving their family issues, it is likely that more than a third of the project families would not have accessed, or been able to access, an alternative service if the technology-assisted mediation service had not been available. Additionally, they may have saved money by avoiding travel costs and additional time off work.

What are the implications for those of us in the dispute resolution business, including lawyers, mediators, arbitrators, parenting coordinators, Family Justice Counsellors etc.? Richard Susskind predicts that this type of technology-assisted process will be the way of the future. Rather than push back, he invites us to consider this an opportunity to meet the needs of our clients in new ways.

Are we up to it? The senior mediators (three of whom were also lawyers) and Family Justice Counsellors who participated on the project team were not technology experts. One mediator admitted his “love/hate” relationship with technology at the outset! However, they came ready to learn and, by the end of the project were astounded at how well it worked.

I invite you to read the formal evaluation report, the Practice Guidelines and other project reports collected here as well as the wonderful blog posts coordinated by project manager Susanna Jani over the past 3 years.

“Disruptive” or not, this is coming…and it works.

Retweet information »

Comments

  1. The Mediate BC project has definitely been one of the most interesting ODR initiatives – it is in many ways unique – in the country. I mentioned it in my overview of ODR in Canada last fall.

    As with any ODR program, there are questions about its business model: who pays? Is it an add-on to the usual Justice/Courts budget, or can the parties pay some or all? Can resources be taken from the existing courts budget because this does the same job better?

    B.C. will explore answers to those questions with its Civil Resolution Tribunal as well, once it’s up and running – though not for family cases, rather small claims and some condominium/strata titles disputes.

    Speaking of Mr Susskind, however – is the disruption that dispute resolution is going online, or that it is being done by mediation etc? The ‘ADR’ disruption has been predicted for over 20 years. Is it happening? Or is it too an add-on to the usual business model? Technology is a disruptor, but is ODR?

  2. While yes technology allows online dispute resolution to happen, ODR is a major shift in how people resolve disputes and not simply an add on to an existing business model.

    We can use technology to display information simultaneously while mediating and have the parties work together in real-time to edit their agreement. We can do “what if scenarios” on the fly and give people options to consider right then and there. This we’ve found leads to faster resolutions, lower cost and much less stress as the parties do not need to be in the same room with each other.

    It also allows access to high quality professionals to individuals in need, regardless of their geography or mobility. Thru ODR we’ve been able to help those who’s spouse has moved to another country or are unable to travel from their homes due to medical or mobility issues. With the population aging and gray divorce on the rise, I foresee a greater need for such a service as ODR.

    Add to this the younger generation’s penchant for using technology. I’ve watched two teenagers sitting next to each other in the same room texting each other. To them technology is the only way to communicate and ODR will be the norm.

    Perhaps one day we’ll all be commenting on an article about how “face to face mediation is the wave of the future!” But for now, I feel ODR will most certainly play that role.

Leave a Reply

(Your email address will not be published or distributed)