Online mediation - will it take off?
by John Vohralik*
Online mediation has developed slowly in several jurisdictions.
Why has it been implemented and tested? The answer is simple: businesses and individuals are more mobile and tech savvy today.
Litigation and claims processes are time consuming, costly and business executives' time is taken up in the litigation, rather than on productive business development activities.
Cross-border international transactions are far more frequent and often involve difficult jurisdictional disputes, judgement registration and enforcement issues. Over the years, technology (eg video conferencing) has developed at a fast pace, making it easier to communicate from different geographic locations, instantaneously and seamlessly.
In the broader online dispute resolution field, there are success stories, for example, disputes processed via the eBay-assisted online dispute negotiation system have reportedly helped disputants resolve large numbers of claims.
In late 2014, the NSW Civil and Administrative Tribunal (NCAT) developed a pilot program to handle small business disputes with the assistance of an online program. If settlement was achieved, NCAT made orders to dispose of the matter. If not, the dispute would then progress through NCAT's usual procedures.
In the US, entities like Cyber Settle have helped disputants resolve claims using online settlement processes. Cyber Settle uses what is often referred to as a blind bidding system. Each party submits a range of monetary amounts they are prepared to offer the other party (without reference to the other party).
Once the offers overlap, the system calculates the midpoint which becomes the settlement sum. Obviously, such systems are mainly suited to disputes in which quantum is the only substantive issue. They may not be suitable for disputes involving liability or matters of policy or public interest.
What are the advantages of online mediation?
• Convenience: the parties and the mediator can engage at times that suit, upload documents seamlessly, do not need to travel to participate and can arrange live video conferencing mediation sessions quickly. People with disabilities and problems travelling can easily participate.
• The cost is often less compared with the usual form of mediation sessions, and travel and room-hire costs are not incurred.
• Process advantages: complex jurisdictional issues should not arise, communication is instantaneous and numerous participants from different locations can be brought into the discussions. Separate sessions can be held online privately via video conferencing between one or more parties and the mediator.
• Better party communication: Joseph Goodman, in an article, The pros and cons of online dispute resolution: An assessment of cyber-mediation websites, suggested online mediation processes that involve parties putting their concerns in writing promotes better communication, compared with impulsive first responses often articulated in oral mediation sessions, which can cause provocation and angst.
And the disadvantages?
• Electronic communication cannot substitute for face-to-face interaction. Traditional mediation methods are productive due to the interaction between the parties and the mediator, and use of skills by the mediator to pick up on a party’s body language and expressions. Electronic communication tends to be more impersonal and does not lend itself so well to empathy and dealing with emotions.
• Inaccessibility: some parties may not have access to the computer systems necessary to log onto sophisticated online mediation platforms to adequately participate.
• Technical hitches on the mediation platform could disrupt the flow of an online mediation session.
• Confidentiality and trust: these are fundamental ingredients for mediation sessions. In an online environment, no matter how sophisticated the system, there is always a possibility others may see or overhear a confidential session. A senior mediation and arbitration specialist has said it can be “prone to suspicion and misunderstanding”.
• Process disadvantages: some mediators believe the online environment lacks warmth, empathy, immediacy, and the opportunity for rapport development. Texts or emails may be prone to misinterpretation or misunderstanding. Parties may use the online process to slow the mediation, takinig time to respond to emails/messages to suit their own objectives.
Weighing the pros and cons of online dispute methodology, I believe there will be a fairly rapid growth in online mediation (and possibly other dispute resolution methods, like arbitration) conducted via different models in Australia.
Some mediators are already using online mediation. The challenge for mediators; compliance, risk and governance professionals; insurers; and their solicitors will be to select the right process (eg video conferencing, email, live time or over time, automated bidding systems, or a combination of one or more of these or other options) for a particular dispute. Most domestic and global organisations will have IT systems to enable them to use the available and growing technology.
Modron, for example, is an easy-to-use technology that offers live email communication, a set monthly fee, private or group (unlimited numbers) video conferencing, and billing systems. It is user friendly via multiple electronic devices and enables easy document downloads, with calendars, case management tools and reminders.
The Australian Disputes Centre offers a wide range of facilities, including video conferencing. The Mediation Room of the UK offers online mediation and training. Zoom apparently offers a cost-effective, easy-to-use system for video conferencing rooms, cross-platform messaging, file sharing and development of apps for video, voice and screen sharing. Many other systems and training facilities are available via a simple internet search.
The NSW Law Society has drafted a form of model dispute resolution clause for commercial contracts - click here.
The clause provides a standard form of dispute resolution process to be adopted for a contractual dispute. If the initial steps do not lead to a resolution, the provisions provide for the parties to ask the Law Society of NSW president to nominate a suitable mediator. The mediator will be nationally accredited and chosen from the NSW Law Society's panel of mediators.
Perhaps consideration could be given to incorporating an option to adopt online mediation as part of the dispute process in contractual provisions?
The following quote reflects my views on the future of online mediation.
Richard Susskind, IT adviser to the UK Lord Chief Justice, in an article Tomorrow's Lawyers, published by Oxford University Press in 2013, said: "I expect [online dispute resolution] to become the dominant way to resolve all but the most complex and high-value disputes." Time will tell.
*John Vohralik is a solicitor, a nationally accredited mediator, owner of Vohralik Mediation (www.vohralikmediation.com) and a member of the NSW Law Society's ADR Committee.