Enhancing Mediation With Technology

In this post I’m highlighting a really helpful and provocative article by Alyson Carrel and Noam Ebner [Note 1] entitled “Mind the Gap: Bringing Technology to the Mediation Table”. The article acknowledges the powerful force of technology in all parts of our lives and points out that the mediation field’s adoption of useful technology has been largely focused on offering online or “distance mediation” processes. The authors warn that unless the mediation field actively explores the use of technology in all parts of the mediation process, including in-person mediation, it risks becoming irrelevant to the next generation of mediators and clients.

There is no doubt that technology tools permeate all parts of our lives. I write this post from a boat in the middle of Desolation Sound BC where cell or internet connections are spotty at best. While I appreciate the break from my devices, I also like to keep in touch with family, friends and my various projects. So, I admit to rowing out to the nearest place within range of a cell tower to send or receive emails and text messages.

And yet, the “traditional” mediation process is still a fully in person session (or series of sessions) with the parties and their counsel, if any. Carrel and Ebner argue that mediation practice has not kept up with the times and that the field has been distracted by creating online or web-conferencing processes to substitute for in person approaches. This is not a bad thing as we need “distance mediation” options. The problem is that the rest of the mediation process has stagnated.

The article includes interesting examples from other disciplines including the legal profession and healthcare. In my view, the authors are slightly too optimistic about the progress of the legal profession in creating and using technology tools. But I do see a shift beginning, spurred by pressures from those outside of the profession and a recognition of urgent needs of both clients and practitioners.

The authors identify four categories of roles or functions that technology tools could play in mediation: [note that they also provide a more chronological list of phases]

1. Administration
2. Communication
3. Substantive practice
4. Practice support

They also provide a helpful table with practical examples of each category (Fig. 1).

For example, technology tools could support functions in the substantive practice category including:

• Party education (about mediation, mediators or the subject matter of the dispute)
• Assessment of parties’ preferences and priorities
• Predicting likely settlement or judicial outcomes
• Reality-testing for BATNAs
• Conflict coaching

While the authors are careful to say they are not recommending any particular tools, they do offer a few specific examples. In particular, technology tools for use at the (in-person) mediation table could include:

• apps to support mediators such as agreement templates, calendars, and self-reflection documents
• apps to support parties such as a conflict coaching tool
• wearable devices to recognize and explore emotions
• legal analytics to support reality testing, evaluative mediation approaches or even option generation.

Another example could be the use of technology to connect mediating parties with unbundled legal services directly from the mediation room. [link to mediation book]

I found the last part of the article to be the most interesting. The authors suggest that technology has the potential to deal with some of the big issues in the field including (I have reframed somewhat):

• How can we increase public awareness of the mediation process and its benefits?
• How can we help the mediation field to “see itself”? How can we begin to collect and analyze mediation information to create a large and reliable body of data to permit us innovate beyond anecdotal examples and limited research studies?
• How could data analytics assist in rationalizing the current divide between “facilitative” and “evaluative” mediation processes by providing a large, reliable and neutral set of outcome predictions?
• How can we deal more effectively with the core concept of mediator “neutrality”?
• How can we bridge the current divide between those who criticize mediation as “private settlement” and those who advocate for the confidential nature of mediation?
• How can we support mediator certification, performance quality, ethics and mediator discipline? [Note 2]

To this important list I would add: How can we collect, share, analyze and use reliable aggregate information about mediation in order to enhance our efforts to improve access to justice? Mediation has a significant role to play in helping people to solve the legal problems. While we have conducted numerous small experiments [Note 3] to test this assumption we still lack a cogent research base that is large enough to allow tailoring of process to meet the needs of the users in various contexts and a way of sharing and combining datasets.

This article challenges the mediation field, the legal profession, courts and justice-reform collectives to consider more carefully how technology could improve the problem-solving process, improve public awareness and use of mediation and increase the credibility of mediation.

Definitely worth a read and summer reflection.

NOTES:

[1] Noam Ebner has researched and written extensively for many years about the intersection of mediation and technology tools, including the 2012 article he co-authored with Colleen Getz highlighting the environmental benefits of using ODR: ODR: The Next Green Giant. This article referred to Getz’s evaluation of Mediate BC’s Phase II of the Technology-Assisted Family Mediation Project” 2010.

[2] This is one of the hallmarks of Mediate BC’s Rosters of mediators who are required to meet rigorous training and experience requirements, commit to Standards of Conduct, carry insurance and be subject to a complaint/discipline process.

[3] Small experiments in BC include Northern Navigator, the Child Support Eligibility Mediation Project, etc.