The conventional notions of socializing, conducting business, and expression are evolving as we enter the Digital Age, an era characterized by the immediate access to information with just a click of a mouse. As the Internet changes daily aspects of our lives, it comes as no surprise that the Internet has penetrated its way into the world of mediation. Originally, online dispute resolution only dealt with conflicts that stemmed from online transactions, namely e-commerce. As the Internet expanded the opportunities for transactions among buyers and sellers from different counties, several roadblocks emerged during a dispute, including the expense of filing a lawsuit in a foreign country, the complex jurisdiction issues, and the distances involved. In response, an online forum surfaced as the most efficient way for the two parties to resolve any potential conflicts. Skeptics of online mediation have resisted the new forum due to the inability to communicate face-to-face and the lack of familiarity with the cyber-environment. Today, however, online mediation is no longer perceived as an experiment. As a matter of fact, the cyberspace model of online dispute resolution has expanded its disputes from simple e-commerce transactions to cater to a wide array of disputes.
Several factors come into play during the process of deciding a forum to resolve a dispute, to be exact: the specific qualities of the conflict that should be taken into account; the nature of the disputants; and the type of conflict. Neither online nor conventional mediation is the proper medium for all circumstances. Nonetheless, certain characteristics distinctive to the electronic form of mediation transfer the cyberspace “negotiating table” into the preferred context to resolve disputes.
2. The Spread of Online Dispute Resolution
Alternative Dispute Resolution (ADR) developed as a reaction to the setbacks associated with the judicial process. Litigation costs, court backlog, and the inherent adversarial system associated with lawsuit proceedings rendered mediation as an attractive forum for disputants. Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute Resolution Movement is Re-Shaping Out Legal System, 108 Pa. St. Rev. 165 (2003). The process of mediation involves an impartial third party that facilitates communication and promotes voluntary decision-making in an informal, confidential setting. The mediator is designated the duty of drawing out information from the participants to generate a mutually acceptable resolution. The mediator is also responsible for creating a trusting atmosphere so the parties feel comfortable enough to express their true interests and feelings. Mediation’s apparent “efficiency, cost-effectiveness, and opportunity for party self-determination encouraged the proliferation of mediation programs in a variety of settings.” Andrea M. Braeutigam, Fusses that Fit Online: Online Mediation in Non-Commercial Contexts, 5 Appalachian J.L. 275 (2006). In the similar pursuit for effectiveness, low costs, and self-empowerment, online mediation is parallel to the conventional face-to-face process.
A. The Online Mediation Format
Online mediation is carried out on the Internet in a variety of manners. The original websites for online mediation used email as the primary source of communication. See generally, Robert Gordon, The Electronic Personality and Digital Self, 56 Dis. Res. J. 8 (2001). Recently, online mediation uses bulletin boards and threaded dialogue so the messages are saved on a confidential site. The disputants and mediator may visit the website to conduct a mediation specifically tailored to the conflict or the parties involved. For instance, the website may be designed for the mediator to be the sole communicator among the participants so the parties are not in direct communication. Other websites are highly technical, providing options for caucuses, calendars, and confidential messaging. A majority of online mediation websites today are asynchronous, meaning the site has a time delay during communication periods, while other sites allow the parties to communicate through a “chat room” in real time. Although there are noteworthy differences among online and “at-the-table” mediation, the fundamental concern is how the discrepancies influence the mediation.
B. Mediator’s Role
Similar to offline mediation, mediators who communicate on the Internet have certain duties to ensure that the process goes smoothly. For the disputants to feel involved, the mediator may ensure that she is consistently interacting with both parties. If one participant takes more authority over the conversation, the mediator may check in with the other participant to ensure a fair share of the process. Furthermore, the skills used in face-to-face mediation may be applied to the online forum as well. For example, acknowledgement, reframing, and empathy can be conveyed online to trigger a similar effect on the parties. Perhaps a useful recommendation is to ensure that the mediator is in constant communication with both sides of the dispute. A simple “I have received your message” comment may reassure a participant that he has been heard. The disputants can feel attended to by receiving consistent updates on the process towards settlement. Effective communication skills and active rapport building are two characteristics that may alter the course of online and live mediation.
C. Fourth Party
Technology is responsible for augmenting an additional dimension to mediation, namely a fourth party. The fourth party is the type of software employed during the process. Parallel to the procedure of mediation, such as the STAR method, online mediation is structured by the software. Choosing the correct software, assuming the option is available, is an important step in the online mediation process. The fourth party serves as a metaphor for the wide variety of approaches that can be taken by the mediator or by the parties themselves. As a matter of fact, the software may be capable of alleviating the mediator from certain tasks and duties. Therefore, the fourth party plays a significant role in the dispute resolution process when conducted online.
D. The Benefits Unique to Online Mediation
As parties enter the cyber-office for online mediation, there are several advantages pertaining to its pragmatism and expediency. For example, the participants do not need to synchronize their schedules and retreat from their daily lives and travel to physical site to convene. Each party may enter the world of mediation at his or her convenience from the comfort of the home with taps on a keyboard. Furthermore, the complexities associated with the choice of jurisdiction may have made conflict resolution completely unfeasible without an online forum. Therefore, in several situations, mediation may be the sole medium to fill the void for disputants separated in distance.
The informal and flexible nature of mediation is exemplified further with online mediation. Online mediation is not limited by borders, facilitating a dialogue for people who are physically separated due to geography. Moreover, the participants may use the process from the comfort of their own homes. Issues pertaining to the choice of a specific mediator can be more easily resolved. The mediator is no longer limited to disputes within her geographical reach as she may sit in her cyberspace office and facilitate mediations that cater to her area of expertise, rather than mediations within her city or state. Furthermore, parties who are involved in conflicts that are not valued high enough to justify traditional mediation may resolve the dispute online.
E. SquareTrade: A Successful Application of Online Mediation
With the birth of eBay, buyers and sellers came into contact with each other as millions of items were auctioned on the site. Obviously, a face-to-face conflict resolution process was not a feasible option to assist a buyer and seller if they were in conflict from opposite ends of the nation. Litigation was also not a suitable solution due to several factors. Specifically, the problems associated with jurisdiction are likely to arise when dealing with buyers and sellers from different states or countries. Furthermore, the transactions on eBay are of a low financial value, an additional element that inhibits the use of the court system to resolve disputes. As a result, eBay lacked an appropriate forum for conflict resolution.
The University of Massachusetts’ Center for Information Technology and Dispute Resolution conducted an experiment to solve eBay’s problem pertaining to a proper dispute resolution forum. eBay, About eBay, http://pages.ebay.com/aboutebay.html (2005). The study dealt with 144 conflicts between online buyers and sellers and a mediator who communicated with the parties in an email format. Ethan Katch et al., E-Commerce, E-Disputes, and E-Dispute Resolution: In the Shadow of “EBay Law,” 15 Ohio St. J. on Dis. Res. 705 (2000). The experiment was regarded as successful and put into practice in 1999. EBay joined forces with the independent company SquareTrade to handle their disputes. With over 250 mediators, SquareTrade has mediated over one million conflicts through a two step process. First, SquareTrade allows the parties to negotiate and resolve the conflict themselves. If the initial interaction is not successful, the parties may opt to participate in the second step, where, for an economical fee, a mediator facilitates the conversation between the two parties. The mediators and trained to deal with a wide spectrum of issues, including lost items, misrepresentations, and user feedback. Once a settlement was reached, the mediator drafts a memorandum and both parties click “I accept.”
SquareTrade has offered a form on online dispute resolution that is modestly priced and expeditious enough to solve low-valued conflicts on a mass scale and across borders. Indeed, SquareTrade’s success with eBay resulted in the company expanding its services to include disputes with real estate and insurance companies. Critics of the company may assert that its software is unsophisticated and limited to certain types of issues. Nevertheless, SquareTrade’s system is successful in resolving disputes in an online forum without imposing an agreement against the will of one of the disputants.
3. The Alleged Disadvantages to Online Mediation
A. Textual Dialogue is a Subordinate Form of Communication
Perhaps the most noteworthy difference between offline and online mediation is that online mediation is transcribed, rather than spoken, through verbal communication. In an attempt to solve the issues pertaining to the parties’ inability to physically sit across from each other, some websites offer communication through video conferences. Nevertheless, communication with videos presents problems with the Internet quality and bandwidth technology. As a result, traditional mediation is distinctive in the respect that the process allows the disputants to rely on nonverbal communication and body language. Proponents of face-to-face mediation pose that nonverbal cues are an essential element of the process. Online mediation may prevent a mediator from performing her duty to facilitate the discussion because a primary element of her role is processing vocal auditory information. Thus, a mediator may find it difficult to translate her duties in an electronic forum.
Additionally, only offline conventional mediation allows the parties to factor in the parties’ tone during communication. For instance, sarcasm or humorous comments may not be conveyed in text and may result in further conflict or miscommunication. Because conflicts are generally coupled with a high degree of emotion, a party may not feel as though the other participant in the mediation fully comprehends a feeling unless it is verbally expressed at the negotiation table.
Mediation is generally not evaluated by the final settlement or outcome; rather, the entire process of mediation is a significant feature for the disputants. Critics of online mediation claim that online mediation is not a sufficient medium that values the process of facilitative communication. The act of catharsis or empathy may require facial recognition in a physical setting and an online forum may not be able to support the degree of emotions. One critic stated “[f]or mediators to attempt to establish this trust in writing at a distance is as preposterous as a therapist foregoing face-to-face evaluation and treating a patient by reading her journal.” 1998 B.Y.U. L. Rev. 1305. Informal chitchat and banter, a popular method to make the parties feel comfortable, is also less likely during online mediation. Online mediation may restrain the progression of trust that is a necessary step to increase the likelihood of settlement. As a result, skeptics of online mediation contend that online versions of mediation are a less favorable forum than its original form because the online atmosphere may impose a flaw in the expression of feelings, attention, humor, or sociability.
Research and experiments, however, demonstrate that skeptics of online mediation may be exaggerating the degree of importance nonverbal communication plays during dispute resolution process. Commentators have come to the conclusion that text-based mediation does not significantly alter the parties’ experiences as they reach a settlement. A recent study took note of disputants’ feelings following the participation in a wide variety of online mediations, including product liability, professional negligence, and workplace sexual harassment conflicts. Anne-Marie G. Hammond, How Do You Write “Yes”?: A Study on the Effectiveness of Online Dispute Resolution, 20(3) Conflict Res. Q. 261 (2003). Immediately after the online mediation, the participants answered a hundred-question survey and participated in a focus group. The survey demonstrated that the textual form of communication did not inhibit the participants from expressing themselves or feeling understood. Id. Some of the participants noted that they were able to “overcome” the deficiency in nonverbal communication. Id. Additionally, many participants held that they felt more comfortable expressing themselves online and the content of their messages was more open and truthful. Id.
The increase in the use of technology serves as a significant factor in the ability to pick up on nonverbal communication by means of a cyberspace forum. In a society that heavily depends on email and chat rooms to communicate, people have been successful in familiarizing themselves with emotional cues and tones without verbal communication. For instance, the use of capital letters is commonly used to stress anger or yelling. Abbreviations for laughter are also commonly used to display a sense of humor or friendliness while still conveying the substance of the message. Additionally, a mediator can build trust with the parties by mirroring writing styles and communication patterns. Online communication appears to be sophisticated enough to support the expression of different degrees of emotion necessary for people to connect with one another.
Online communication, whether it is through email or a website, is not a private endeavor. Contrasted with private diaries, modernly, many people feel comfortable as they opine on blogs and status updates and engage in online conversations with total strangers. To the extent that mediation values the trust-building aspect of the process, a cyberspace medium may suffice. Indeed, parties may feel even more comfortable emoting online rather than interacting in person.
B. Access to Technology
Skeptics of online mediation contend that the process poses a disadvantage to participants who are not as “tech savvy.” The discrepancy between the two parties is generally credited to socioeconomic factors, such as nationality, income, and education. As a result, critics claim that online mediation unfairly advantages certain classes of people because of their superior literacy in computers. Commonly referred to as the “digital divide,” perhaps “[t]he divide has produced a class of ‘virtual elite’ who are able to dominate online discussion forums because they have a higher degree of online literacy.” Braeutigam, supra, at 292. This technological gap, however, may be reduced through different methods.
Rather than ruling out online mediation completely, the process may become equally accessible and understood by all the participants. There are intermediaries that can bridge the socioeconomic gap for the parties to communicate effective online. For instance, public libraries and ADR associations may alleviate the issues associated with access to computers and the Internet. These technical difficulties can be solved with the use of a detailed instruction guide or a telephone hotline with customer service. Moreover, conventional mediation is associated with similar prejudices. For instance, face-to-face mediation has a tendency to benefit the party that is more educated and articulate, or thought to be associated with a dominant racial group. Lewellyn Joseph Gibbons et al., Cyber-Mediation Computer Mediated Communication Medium Messaging the Message, 32 N.M. L. Rev. 27 (2002). Therefore, both online and offline mediation have the potential to be biased and advantage certain parties with dissimilar skills.
4. Why is Online Mediation So Special?
A. Freedom from Inferences
While opponents to ODR disparage on the inability to read nonverbal communication through online communication, there are advantages to speaking through text. Body language and nonverbal cues may be misconstrued and unintentionally result in impasse during the live mediation. Simple cues, such as crossed arms or rolling of the eyes can turn a successful settlement into a game of revenge and impasse. Additionally, because tone is not naturally conveyed through textual communication, antagonistic or aggressive conduct, including shouting or negative gestures, will not be communicated without the party thinking about it beforehand. When nonverbal communication is removed from the dialogue, the parties are forced to focus on the content of the message, rather than the potentially distracting gestures that may replace the substantive issues. The process of removing inherent gestures from a conversation may promote a friendlier environment for the parties to focus on the subject matter of the conflict. Thus, online mediation is suitable for parties who are likely to engage in hostile nonverbal communication.
The absence of a face-to-face conversation may be beneficial for certain types of people who do not fare well in conflict zones. Confrontation triggers a wide variety of emotions; many people may feel uncomfortable or anxious because the mediation process is generally not within the parties’ comfort zone. These emotions may blind one or both of the parties, especially when the participant must speak and respond in a face-to-face setting. Non-confrontational parties are at a disadvantage when dealing with an aggressive counterpart during a conventional mediation. Furthermore, perhaps the “shy” participant may simply concede too much in the hopes of ending the mediation, resulting in a procedurally unfair process. Therefore, allowing the party to communicate through the Internet barrier protects negotiators who are fearful or anxious when dealing with their opponent face-to-face.
The distance between the two parties allows each party to adapt to the situation at hand. For instance, a nonassertive party may take a more aggressive role online because the forum is conducive to an adaptable atmosphere. Each party is given an equal opportunity to express themselves in their best way possible, without feeling restricted by their insecurities or own sense of self. In scenarios with discrepancies in bargaining power, the disputant with less power is more likely to feel underprivileged. For instance, an employee may feel obliged to respect his employer and thus the employer will be more likely to overshadow the employee during the conversation. However, online negotiating has the potential of empowering the disadvantaged party to balance out the dialogue. The participant in the lower position may also be expected to act a certain way when dealing with a party who has more power. This imposed expectation is more likely to be eliminated during online mediation because both parties are in equal control of the conversation. Gordon, supra, at 15. As a result, online communication assists parties who have to deal with the problems associated with differences in bargaining power.
C. Absence of Real-Time Conversation
Live conversations may heighten the tension during mediation as the disputants are pressured to respond to the opponent without ample time to think of the most reasonable response. During highly emotional moments of mediation, a participant may make a regretful statement in the heat of the moment, disrupting the entire mediation process. On the other hand, online mediation allows each party to cool off before responding. The participants may use the time period to reflect on the state of affairs and on how to appropriately respond. Subsequently, each response can be more carefully constructed and rid of unnecessary emotional attachments. Studies demonstrate that the act of typing and the ensuing time delay results in participants concentrating their efforts on the substance of their statements, making each reply more comprehendible and direct. Thomas Schultz et al., Online Dispute Resolution: The State of the Art and the Issues, 10 Univ. Geneva 37 (2001). Finally, each party may assess the facts by reviewing documents and information on his or her own time, rather than wasting the opposing party and mediator’s time during a live mediation.
The mediator may also benefit from blocks of time between each response because she is dealing with focused statements from the disputants and is given the opportunity to reflect on the statements on her own time as well. The mediator will not have to waste time ensuring that each party is actively involved in the conversation because the participants negotiate and communicate with each other in a different way online. Specifically, the parties cannot interrupt each other or tune each other out. These disparaging communication methods make the mediator’s task more strenuous as she has to ensure that each party is listening to each other. Interacting online, however, does not leave room for interruptions. Also, an online mediation requires that the participants actively interact with each other by reading, evaluating, and writing messages in response. Written responses are more “set in stone” rather than based on recollections and faulty memory. Therefore, evidence demonstrates that the parties are more likely to refine communication when it is in writing. Elaine M. Landy, Scrolling Around the New Organization: The Potential for Conflict in the On-Line Environment, 16 Negot. J. 133 (2000). The mediator may also benefit from being able to pose a list of potential solutions or hypothetical situations that each side may consider.
D. A Truly Confidential Caucus
The confidentiality of an online, rather than live, caucus fosters a more trusting and unquestioning atmosphere. During conventional mediations, when a party requests a caucus, the opposing party will likely think of the different material that may be discussed. As a result, the disputant’s mind may go astray into a negative frame of mind as he wonders about the content of the conversation that is intended to be confidential. During an online mediation, a party can go into caucus with the mediator without the opposing party’s knowledge. Furthermore, the process of breaking into caucus may disrupt the flow of the conversation and be viewed as “wasting time” by the opposing party. These potential setbacks do not exist during an online mediation as the mediator can tactfully go into caucus with each party and maintain the momentum without raising suspicions.
E. Anonymous Parties
In settings where the mediator has never met the participants, or even in contexts where the disputants have never met each other, an online forum preserves anonymity. The participants are blind to all socioeconomic factors, such as race, gender, or age, which may potentially bias the mediation. Although an essential role of the mediator is to remain unprejudiced, mediators are human and may be affected by certain aspects of the parties’ identity. The inherently anonymous nature of the Internet limits the mediator’s knowledge to the substance of the conflict, rather than the socioeconomic status of the parties.
In a world that increasingly relies on the cyberspace office to conduct transactions, there are many scenarios where the parties have never met or even had telephonic conversations. For instance, insurance companies and government agencies often deal with their conflicts solely in an online setting. In these types of situations, the benefits of anonymity may be preserved during the online mediation to help minorities who may be disadvantaged from the conventional form of mediation. Many disputants turn to mediation, rather than the court system, due to the aspect of confidentiality in mediation. Perhaps more appealing, online mediation preserves confidentiality to an even higher degree when the parties remain anonymous.
5. When is Online Mediation a Suitable Forum?
Traditional mediation is preferred to online mediation for certain conflicts and for certain disputants. If both participants feel more comfortable interacting orally or in person, rather than textual discussions, then opting out of online mediation may be the best result. Additionally, conflicts that revolve around emotion may be resolved through live mediation. For instance, a relationship between a boyfriend and girlfriend may need face-to-face contact to bring closure to the process. Additionally, the victim in a personal injury case may feel as if his opponent needs the visual connection to fully demonstrate and calculate ensuing damages. Parties that value the future of their relationship and communicate face-to-face often are suitable candidates for live mediation.
B. Family Conflicts
Online mediation is a suitable alternative to traditional mediation for divorce disputes. Matters that pertain to divorce, particularly if a custody battle is involved, are intensified with high amplitudes of emotion and miscommunication. Even couples who are divorced on friendly terms have settled forms of communication and are proficient in understanding the implications behind an ex-partner’s body language. Communication through cyberspace changes the divorcees’ form of communication and eliminates any typical responses to nonverbal cues.
As mentioned earlier, an online forum is less confrontational than a face-to-face mediation, an advantageous element for family disputes. Considering the fact that the parties will be forced to adjust to a new pattern of interaction, the ex-spouses are less likely to resort to their old, perhaps ineffective, modes of communication. Furthermore, the parties may find their judgment clouded by emotion when looking into the eyes of their ex-spouse as they battle over various issues from their failed marriage. The distance between the two parties may be a favorable condition to come to a reasonable and fair settlement. Finally, allowing each party to “cool off” before offering a response is an additional tactic to facilitate effective communication between the disputants.
Throughout the years, since the emergence of the Internet, online mediation has proven itself to be an effective means of resolving certain types of disputes. Specifically, online mediation is suitable for: disputants who are not comfortable with confrontation or resort to a habit of ineffective communication; disputes that require attention to the substance of the conflict; and disputes that involve a great deal of emotion. Online mediation is a suitable method to resolve a dispute for certain types of conflicts and parties. An important element to both online and offline dispute resolution processes involves the parties’ will and determination to resolve the conflict. Although communication in cyberspace has its shortcomings, the sophistication associated with this relatively new form of dispute resolution has the potential to solve issues that were previously unfathomable. Rather than focusing on the weaknesses of electronic interactions, online mediation may be viewed as one of the many available instruments available to disputants when certain conflicts develop.
Negeen Rivani recently graduated from Pepperdine University School of Law with a certificate in Dispute Resolution from the Straus Institute of Dispute Resolution. She received her Bachelor of Arts from University of California Los Angeles where she graduated cum laude. In addition to her externship for a federal judge, the Honorable Valerie Baker Fairbank, Negeen is the editor for the Pepperdine Dispute Resolution Law Journal. She represented Pepperdine in the American Bar Association's Mediation Competition in Berkeley and in the Willem C. Vis International Commercial Arbitration Moot in Vienna. She is currently a law clerk for Shernoff Bidart Echeverria Bentley LLP where she assists the attorneys in several fields of law, including bad faith insurance.