It is beyond the scope of this article to distinguish among the various types of ODR that are rapidly evolving both here in the U.S. and abroad (from automated complaint management systems to computer assisted negotiations, et al.). Nor will this article draw a distinction between those systems designed specifically to accommodate disputes occurring exclusively in an e-commerce environment (see SquareTrade©) versus those involving offline disputes that simply use online technology to supplement traditional ADR approaches. Comments here apply to those ODR systems and websites that incorporate a significant measure of human intervention and are not entirely automated.
The pro and con arguments around online mediation or ODR are remarkably similar to arguments set forth in the 80’s when online education was in its infancy. The most frequently cited advantages: convenience and the promise of greater access at an affordable cost. The disadvantages: inability to incorporate and employ the full range of human communication styles and the criticality of absent, non-verbal signals which led many conventional educators to challenge: “can you really teach effectively without seeing the whites of their eyes?”
Reams of research, the volume of adopters (7.1 million or one of every three U.S. college students took at least one online course in 2014 according to Allen and Seaman, 2014) and the passage of time have helped educators identify which components and sub-components are the most critical in determining the quality and effectiveness of the online student experience.
What we’ve learned may eventually help us understand the components of quality and effectiveness in online mediation as well. In addition, we’ve come to better appreciate the obvious – that convenience and access are not the opposite end of a continuum that has quality and effectiveness at the other end. In other words, while convenience, access and affordability can be measured and evaluated along one continuum, quality and effectiveness must be measured and evaluated along an entirely different scale.
The widespread availability of online courses (see MOOC’s) and online mediation (see 2013 EU Directive on ADR) has established online’s potential to significantly expand access and affordability to both. That much is clear.
However, the impact of an online delivery methodology on quality and effectiveness is an entirely different and very unclear issue to measure. To answer the quality/effectiveness question in the education arena, it was necessary to examine several contributing components: the type of online delivery system or software platform adopted; the training and ability of instructors to use the system; and most importantly, the teaching and communication skills of the individual instructor. We found that those innate teaching and communication skills (apart from their use in conjunction with technology) varied greatly and the differences were profoundly and undisputedly tied to student perceptions of the quality and effectiveness of their learning experience.
I suggest there is a direct correlation with mediators, with whichever technology system or online platform may be employed, with the mediator’s training/competence in use of that system, and most importantly, with the mediator’s innate skills as a mediator/communicator/facilitator independent of the technology employed.
As was the case with online education, a valid, reliable measure of quality and effectiveness may not be available until a critical mass of online mediations have been conducted and studied. Only then will we be able to measure the quality and effectiveness of online mediation. As champions of ADR, we can and should do a better job of supporting or refuting our tools and methodologies rather than simply restating the shallow argument that some access to mediation must somehow be better than no access.
Allen, E. & Seaman, J. (2014). Grade Change: Tracking Online Education in the United States, Babson Survey Research Group. (Originally known as the Sloan Online Survey, this is the 11th annual highly recognized report covering responses from more than 2,800 U.S. colleges and universities.)