Robert E.L. Wright
Online Dispute Resolution (ODR) includes a variety of mechanisms, from negotiations by telephone and email, to arbitrations conducted without any witnesses based on documents supplied via email or facsimile.
Arbitrations and mediations conducted exclusively via videoconferencing are the subject of this article.
The Case for and Against ODR
Traditionally, both mediation and arbitration have been conducted almost exclusively in face-to-face meetings. Some processes are held with participants appearing by phone or videoconference, but those are most often exceptions.
Until videoconferencing became affordable and ubiquitous, most early ODR processes involved a simple typed exchange of monetary settlement offers and counteroffers; Party A typing in an offer and Party B typing in a counteroffer, then rinse and repeat until reaching a settlement or declaring an impasse. Enter free (or nearly free) Skype, Facebook, Google Duo, Go To Meeting, WebEx and Zoom, etc. and ODR becomes virtual reality.
The favorite of mediators and most American courts is now Zoom that provides free software for virtually any device and is extremely simple to use. Neutrals can convene and conduct virtual dispute resolution processes completely by videoconference. The form and substance mirror those of a traditional session. The neutral or a provider organization schedules and “hosts” the process with parties and counsel attending as “guests.” Agreements can be signed remotely using DocuSign and similar services.
Safety & Social Distancing
With ODR, there is zero chance of contracting a virus when you can stay isolated in your home or office yet still see and hear one another. You can still observe upper body language, facial expressions, tone of voice, nervous tics and tells, and signs of anxiety, all of which conveys information we would obtain in person.
As the majority of Michigan mediators are nearing or over 60 years old, they are in a vulnerable group of Americans. Many of our most experienced and effective neutrals are afraid of participating in face-to-face meetings for fear of contracting a fatal disease or bringing it home to a family member of like age and possibly poorer health. Most are willing to continue serving as neutrals if they can use ODR. To preserve that pool of talent, ODR may be the only option.
Abusive Behavior
Another benefit is eliminating the possibility of physical violence occurring where the dispute resolution process is conducted. Videoconferencing makes it easier for family mediators to conduct Michigan’s mandatory domestic violence screening with the parties separately, to assess their respective ability to negotiate and make decisions out of self-determination rather than fear. Inviting each spouse to a private session to check out the technology, provides cover for the mediator to conduct the screening discreetly.
Convenience
No issues with transportation, parking, security checkpoints in courthouses, flight delays/cancellations/departure times, etc. The commute may simply be the time it takes to get from the kitchen to the room where the computer is located.
Cost Savings
ODR eliminates charges for rental cars, parking, mileage, plane tickets, meals, and hotel rooms. Most neutrals provide the ODR platform without charge and free versions of most software platforms is available to participants, though not hosts.
Zoom provides a free version with unlimited one-on-one meeting time, but only 40 minutes of time per session for three or more attendees. This allows parties and attorneys to try the software with one another, friends or family members free, which also reduces time spent on tech issues during the mediation.
Promotes Better Behavior by Participants
In my experience, ODR reduces disruptive behavior with name-calling and angry outbursts; people seem to behave more civilly than in person. Particularly in mediation, there is less resistance to doing work in a joint session as opposed to a private meeting or “caucus,” which saves time and promotes efficiency resulting in reduced professional fees charged to the parties.
Privacy & Confidentiality Concerns
I am not aware of a single instance of an uninvited guest gatecrashing a Zoom mediation or arbitration. Zoom has provided four tools available to all meeting hosts:
1. Meeting ID & Password. Hosts assign a unique meeting ID and password required to gain access to the mediation.
2. Waiting Room. Once inputting the ID and password, guests enter a virtual waiting room and remain there until the host admits them to the mediation. The host can then eject or admit the guest to the main meeting room without allowing the new guest to have contact with other attendees until a legitimate purpose for their presence is established. (E.g., an attorney substituting for a colleague.)
3. Close Meeting. Once all required participants have been admitted, the mediator will “close the door” to the mediation.
4. Private Rooms. Zoom neutrals may create up to 50 private Zoom conference rooms plus the main conference room and choose which guests to admit to each one. Initially, upon admission to the main room I put all guests into private rooms with their counsel. I introduce myself in each private room before beginning settlement negotiations. This way, even if some rogue is briefly admitted to the (empty) main meeting room, they cannot communicate with another guest before I eject them.
Access to each private room is restricted to the host and guests the host chooses. Guests in private room can only see, hear and communicate with other guests in the same room, although they can summon the host when needed. The only exception is that the host can send a broadcast chat message to all participants simultaneously. The message is only visible for a few seconds and then disappears.
Data Privacy Concerns
Zoom collects and stores some personal data during mediations, including stored content in cloud recordings (but not information stored on the neutral’s computer), chat messages, shared files and whiteboards used during meetings. I am aware of no evidence of a breach to date.
No recording of mediation proceedings should be permitted without full disclosure, awareness and informed consent of all participants. Any authorized recording should only be recorded to and stored on the host’s computer, not in the Zoom cloud, to preserve privacy.
Loss of Personal Contact
Where there is animosity, removing personal contact may be a benefit. And because a speaker can look through their camera lens directly into the eyes of every participant simultaneously, Zoom allows an opportunity not available in a face-to-face mediation.
Third Party Participation
It is far easier for third parties to snoop in ODR, but neutrals can ask guests to agree to not do it and to include their agreement as a term in the agreement to mediate or preliminary order for arbitration; discuss appropriate sanctions for violations; require guests to scan the room with their cameras to confirm the absence of third parties, etc. But especially in mediation, I prefer to have the new spouse directly involved in the negotiations to ward off Monday morning quarterbacking and undermining a proposed settlement agreement.
Parties’ Perspective of ODR
I provide a one-page handout with basic instructions on installing the software along with my invitation to participate. I offer a free one-on-one practice session to all attendees. I conduct pre-mediation my scheduling conferences and preliminary hearings on arbitrations via Zoom to introduce attorneys to the platform.
For the full Zoom experience, participants need:
• To download and install (www.Zoom.us) ahead of mediation
• A fast, stable, secure, non-public Internet connection with a fully-charged computer or telephone or other device plugged into a power source
• A quiet, well-lit space with participant facing a light source
• Minimal distractions and interruptions
I warn about privacy and confidentiality; no recording allowed; no eavesdropping or interruptions; no undisclosed third-party participation, only those invited by the mediator. I explain the waiting room and private room features that are used to protect their privacy.
ODR from the Mediator’s Perspective
Zoom videoconferencing requires a strong, secure Internet connection and a backup plan in case technology fails. Use Zoom to conduct the preliminary hearing and scheduling conference. Employ all the security features discussed above and practice with colleagues, family, friends, and clients to help them overcome any technophobia. Ask your neutral for a one-on-one test drive.
Try the ODR experience with your next mediation or arbitration. You can do this!
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Grand Rapids attorney Robert E. L. Wright is a pioneer in mediation and ADR. After a quarter century with a large Michigan firm, he left to develop The Peace Talks, PLC and became a member of Professional Resolution Experts of Michigan (PREMi). A perennial Best Lawyer and Super Lawyer, Wright has spent over 35 years litigating disputes and representing clients in the courts, arbitration and mediation. He mediates business and individual matters, including high asset (and high conflict) divorces. Wright trains other mediators in basic and advanced courses. He is a member and past chair of the ADR Section of the State Bar of Michigan; ACR; ABA Dispute Resolution Section; Grand Rapids Bar Association ADR Section; and a volunteer mediator for the Dispute Resolution Center of West Michigan. He was named Grand Rapids’ best lawyer/arbitrator by Best Lawyer magazine and received the Distinguished Service Award from the State Bar of Michigan ADR Section.
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