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Online Dispute Resolution – Making a Virtue of Necessity

We lawyers, adjudicators, and mediators are normally quite resistant to change. Dealing constantly with conflict, we seek comfort in the dispute resolution processes we know.

So it’s still surprising to me to see how quickly the “dispute resolution industry” has adapted to the new reality of physically-distanced dispute resolution imposed by the COVID pandemic.

Will we ever want to go back to the old way of doing things?

In the spring there was a flurry of tutorials on how to do online dispute resolution. Many people struggled to learn how to ZOOM. Those who had been advocating and doing online dispute resolution for a while offered excellent training programs and guidelines.

In April, the ADR Institute of Canada, ADR Institute of Ontario and Family Dispute Resolution Institute of Ontario jointly published guidelines for online video mediation. They address issues of security and confidentiality, questions about effectiveness of ODR and technology. They include Appendices, which provide detailed guidance on online platforms, key provisions for mediation agreements and tips for participants to prepare for online mediation.

The International Council for Online Dispute Resolution (ICODR), a US-based organization that promotes standards for technology-assisted dispute resolution, has created open standards and offers free Video Mediation Guidelines and other tools.

The National Center for Technology and Dispute Resolution, has published a set of Ethical Principles for ODR which offer clear, universal principles that anyone involved in online mediation or adjudication can follow. Principles such as accessibility, confidentiality, fairness, innovation, security and transparency are applicable to all forms of dispute resolution, whether online or in person.

Mediator Marc Bhalla, whose practice has focussed on online and hybrid mediation for the past five years, has put together insightful reflections and observations on how COVID has changed views of ODR.

Online mediation was generally treated as a novelty before this year, Marc says in “Canada, Conflict & COVID-19”, published in Volume One of The Journal of the Canadian Collaborative for Engagement & Conflict Management. People would consider using it only when meeting in person was inconvenient or impossible.

I’ve noticed the same dynamic in the past. The default option was always to meet in person, even when co-ordinating the schedule of a large group of people made that very difficult. Lawyers might inquire about having one or more participants join remotely, but only when in-person was not feasible, for example due to travel time or cost, or for other personal reasons.

Technology still seems to be an obstacle even now, when virtual mediation or arbitration is the only option. I recently held an online arbitration hearing where a party participated from their lawyer’s offices because they didn’t feel confident managing the technology on their own. The law firm could provide technical support (and, I suppose, some psychological support) for the hearing.

As we become more comfortable with online mediation, we need to take it to the next level. We can leverage online technology to improve the process, rather than accept it as a poor substitute for in person meetings.

As Simon Boehme has observed, “ODR is more than ZOOM.” As he says in “You Mediate on Zoom. Now What?” we often try to replicate the in-person dynamics as much as possible with ZOOM and other online mediation platforms. But the dynamics will always be different. It is difficult to to make real eye contact through a camera and video screen, unless you have lots of practice. (Maybe TV journalists and actors could give us some tutorials…)

We can approach ODR more openly and use the online tools to create collaborative spaces to help parties better define their issues, identify interests and propose options for resolution.

It doesn’t have to be done in real time. We already use asynchronous technology – email, document exchanges, online forms – in our daily lives. We may question whether these things really make our lives easier; sometimes it really is better to speak to someone in person and sort the problem out. But there’s no reason we can’t use them to make dispute resolution less painful. If 80% of the work can be done remotely, in your own time, it becomes much easier to resolve the last 20% of the problem.

We’re seeing more and more commentators endorse online mediation and arbitration. Others still expressed reservations.

Some real concerns about security and confidentiality have been addressed through improvements in widely used video conferencing platforms. After some initial delays, probably due to the explosion in the number of user this spring, ZOOM took steps to improve its security features – and to make existing features easier to navigate, as well as to educate users on how to use them.

Other concerns, including basic issues such as access to technology, are still a work in progress.

Mitchell Rose (@SettleWithMitch) has been a strong proponent of online mediation since COVID first hit in the spring. He says he will continue to recommend it as both a mediator and settlement counsel., even as conditions allow the resumption of in-person mediation.

In August, he wrote in the OBA Just about his impressions about his first in-person mediation in months. His experience as “The Masked Mediator” involved many compromises, but was better than the alternative: an indefinite delay when a virtual mediation is not an option.

Everyone kept their distance and wore masks. People had to speak a bit louder – but not too loud! – through their masks. Non-verbal cues still came through via the eyes and tone of voice. We can all adapt.

It’s possible to combine virtual and in-person mediation. But are there risks, if the mediator meets with one party and their counsel in person, and the other side is participating remotely?

What can the mediator do to ensure that everyone has the ability to participate fully, whether in person or online? We can all continue to experiment to make the best of a situation to which we’ve all been forced to adopt.

Many expect a return to in person dispute resolution once the current pandemic has ended – whenever that may be. As much as we all want our lives to get back to something more “normal”, we shouldn’t abandon the many benefits of online dispute resolution.

As with mediation in general, the biggest challenge is often to get people to try online mediation for the first time. Once people have tried online alternatives – and if we all work hard to ensure that the results are generally positive – maybe they won’t want to go back.

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