There has been a fair bit of discussion recently about the pros and cons on online dispute resolution (ODR).
Using technology to help people resolve disputes does have many advantages. It can increase access to justice –both collaborative (mediation) and adjudicative (arbitration). It can be faster and cheaper than other options.
The availability of ODR tools is an important factor in consumer confidence for electronic commerce. People are simply more willing to buy things online if they know there is a way to resolve problems.
But there is one inherent problem with many ODR systems. You can’t look your opponent in the eye.
Making eye contact is perhaps the most powerful emotional and psychological connection for most people.
The marketing folks who sell us cereal and cookies have known this for a long time. In a study published earlier this year in the journal Environment and Behavior, researchers looked at the effects of eye contact on buying habits of consumers. They found that, if they manipulated the gaze of characters on cereal boxes, they could make the products more appealing to both adults and children. For example, they found that adults were more likely to buy Trix cereal, if the cartoon rabbit on the box looked directly at them, rather than looking away. And, if the characters looked down from the shelf, they were more likely to appeal to children. (Musicus, Tal and Wansink, Eyes in the Aisles: Why Is Cap’n Crunch Looking Down at My Child?)
“Making eye contact even with a character on a cereal box inspires powerful feelings of connection,” co-author Brian Wansink, of Cornell University told the New York Times.
There is plenty of research showing that eye contact is one of the first things we all learn as infants. Failure to develop that ability early, for whatever reason, can lead to serious lifelong emotional and psychological problems.
According to another researcher quoted in the New York Times, there is no real substitute for personal eye contact, which instantly activates the parts of the brain that allow us to process another person’s feelings and intentions.
This is evident in our increasing reliance on impersonal email and text communications. People use emoticons and other shorthand to try to convey nuance – I’m kidding, angry, confused, etc. – but it doesn’t always work.
Telephone is a bit better. We can pick up many cues from tone of voice. But it is not nearly as good as looking someone in the eyes.
Video conference or Skype is better than audio alone, because it allows us to see the other participants. But the visual cues are often diffused or disjointed. Limits in the technology often degrade the video quality. The picture is jerky; light levels aren’t perfect. There are other distractions.
Our natural ability to read other people, understand their thoughts and emotions is most effective when we are in the same room with them, able to make direct eye contact.
“A richer mode of communication is possible right after making eye contact,” says Dr. Atsushi Senju, a cognitive neuroscientist at the Centre for Brain and Cognitive Development at University of London. “It amplifies your ability to compute all the signals so you are able to read the other person’s brain.”
Eye contact makes us socially aware and empathetic. It gives us the ability to accurately read others’ intentions, both good and bad. Making eye contact makes people more likeable. Avoiding eye contact is a strong negative signal in most situations. (But too much eye contact can be negative as well. Look, but don’t stare.)
This may explain why some forms of dispute resolution are more effective than others. In particular, it explains why some are more psychologically satisfying for the participants, even if the objective outcome is the same.
Experiments with automated resolution of large volume, small value disputes have not had great success. Systems that are great in theory have flopped in practice.
In some ways, an automated system may be too easy. Although the participants may rationally understand that an automated system of offers and counter-offers can lead to a fair settlement, there is often an emotional and psychological need to face one’s opponent and see them make concessions to reach a settlement. A bloodless computer solution doesn’t fulfill that deep need.
I also think mediators are too quick to separate disputing parties. In many cases, the principals are never in the same room at all. Of course there are some disputes that are so emotionally volatile (or even physically dangerous) that the parties cannot be together. But, in most situations, sitting across from an opponent and look them in the eye is an important step in reaching a resolution (or in determining that settlement is not possible). It also leads to stronger commitment to and satisfaction with the settlement.
As the research on eye contact shows, we are programmed to make very fast and accurate judgments about another person’s state of mind when we look them in the eyes. A single look can build trust and facilitate more effective communication and open dialogue. Or it can tell us trust is not justified and act as a warning to proceed carefully.
As with many things, this ability is a two-edged sword. Eye contact can reveal both strength and weakness. A bully is encouraged to be more intimidating when someone looks away. And the best way to tell a convincing lie is to look someone straight in the eye.
Face-to-face dispute resolution is not perfect. Tone of voice, body language and eye contact all play a part in the power dynamics of any negotiation. Someone who has difficulty making eye contact will generally be at a disadvantage in mediation. (They will also be at a disadvantage in arbitration and litigation, as they will be perceived to be less credible.)
New insights into the importance of eye contact in human interaction can help mediators and counsel design and implement more effective dispute resolution processes.
It can also enable us to help parties engage more effectively in dispute resolution by making them more aware of how they present themselves and how they react to others.