The Practice of Mediation Online: Techniques to Use or Avoid when Mediating in Cyberspace

Dr. Susan Summers Raines

Assistant Professor of Conflict Management
Kennesaw State University

After mediating more than 7,000 disputes online for a company called Squaretrade.com, and hundreds of civil and domestic cases offline, I am inclined to believe that online mediation is more similar to traditional face-to-face mediation than it is dissimilar. Sure, the use of technology and the added difficulty of communicating without non-verbal cues can pose significant hurdles in some instances or for some disputants. Yet, if the goal is to “fit the forum to the fuss” (Sander and Goldberg, 1994) there will always be a subset of cases for which online mediation is appropriate. This article proposes to briefly describe those cases for which online dispute resolution may be appropriate, and then discussion which mediation and conflict management techniques seem to work either better or worse in the online environment.

My initial reaction to the idea of online mediation was one of open skepticism. I was a “true believer” in the healing powers of mediation. In addition to settling disputes earlier, cheaper, and out of court, I saw mediation as having the potential to preserve or enhance relationships, build communication and conflict management skills among disputants, empower parties to make their own decisions, allow people to tell their stories and be heard, and generally to improve the way society resolves disputes (see Bush and Folger, 1994). While these deeper benefits do not occur in every mediation, the potential exists for them to occur and when it happens, mediators realize they have one of the best jobs in the world. While I was seriously skeptical about online mediation I decided to try it out for myself before reaching any final conclusions. To my utmost surprise, the first few cases I mediated made it clear that most of the benefits of mediation, even the deeper benefits, can surely occur online. The process is much more important than the medium through which it is delivered. Whether through teleconferencing, video conferencing, online, or face-to-face, the mediation process itself can make the space needed for people to resolve their dispute cooperatively.

So which disputes can legitimately be mediated online? This has been written about elsewhere (Raines 2004) and the general consensus seems to be that online dispute resolution (ODR) is appropriate for the following types of cases:

Disputants are geographically distant from each other and/or from the neutral and travel for a traditional mediation is not possible or is cost prohibitive.
Jurisdictional issues make it unclear as to which jurisdiction should prevail and/or would make enforcement of a court decision difficult.
None of the parties are seeking to set judicial precedent or to clarify existing laws.
The dispute itself arose from an Internet-based purchase. In these cases the disputants tend to be geographically separated, have no ongoing relationship, and have regular access to the Internet.

Scheduling difficulties make it impossible for the parties to attend a traditional mediation session.
Concerns about violence or intimidation between the parties makes a traditional mediation setting inappropriate, but the parties wish to move forward with mediation.
For other reasons, a traditional mediation is not feasible, yet the parties want the assistance of a third party neutral to help resolve their dispute.

A dispute should display one or more of these characteristics before online mediation is chosen over traditional mediation. In addition, the following conditions should be met before mediation can proceed online. You will notice that some of these conditions are identical to those that mediators must ensure for traditional mediation as well.

The parties must have regular, cost effective access to the Internet. Most public libraries in the United States offer Internet access for free or at a very low rate. Access to the Internet is widespread in North America and Europe, but when working with disputants in other regions it is not necessarily the case.
The parties, their representatives and the neutral must be able to communicate in writing in a common language or make arrangements for any necessary translation. For example, I mediate in French or English, but refer Spanish speakers to Spanish speaking mediators.
All disputants, their representatives, and the neutral must have at least minimal computer skills in order to send and receive communications related to the case.
There must be provisions in place to guarantee the confidentiality and security of communications occurring as part of the mediation process. Password protection or other security systems must be in place to ensure that non-parties do not gain access to mediation communications.
All disputants must be competent to mediate and to enter into a mediated agreement.
Ground rules must be created by either the neutral, or by the neutral and the parties together. For ODR, these ground rules should include expectations surrounding the frequency with which all parties and the neutral will check and respond to messages (if mediation is occurring in an email caucus/shuttle diplomacy style, also known as asynchronous). If mediation will occur through simultaneous (synchronous) communications, then the parties and the neutral must agree to a specific schedule for the mediation session(s).
Some online mediators ask the parties to stop communicating with each other outside of mediation so that the mediator does not fall “out of the loop”, so to speak.

At this time more than 1.5 million disputes have been mediated online through Squaretrade.com and a number of other ODR providers. Additionally, disputes over Internet domain names, and other transboundary commercial transactions are increasingly using online arbitration. Previously the debate about ODR centered around the “should we” and “can we” questions. Clearly many disputes are being mediated, arbitrated, and even facilitated online. Now it is appropriate that the debate should shift to questions of how to improve the practice of online dispute resolution so that online disputants receive the same benefit as those disputants using ADR offline.

Applying Mediation Techniques Online: The Good, the Bad, and the Ugly

Some mediation techniques work surprisingly well in an online environment, while other just plain flop. The following discussion is based on my experience as a mediator both online and offline. As a researcher, I have purposefully experimented with various techniques (as do many mediators) in an attempt to improve my skills and maximize positive outcomes, measured not only by settlement rates, but also by improved relationships between the parties or enhanced conflict management skills that will increase their abilities to resolve disputes independently in the future. The following discussion of techniques does not represent formal academic research, but should serve as a starting point for more formal research into the application of traditional mediation techniques in an online environment.

Techniques to Avoid

Walking Away From the ‘Table’

Like it or not, it is much easier for a party to “leave the negotiating table” when they are taking part in an online mediation process than in a traditional process. They simply stop reading and responding to messages from the mediator. Because it is so easy to end one’s participation in online mediation, the mediator needs to be sensitive to the parties’ signals concerning their levels of commitment to the process. Some parties’ are willing to give it a try, but if it takes too much of their time they will quit. Others need closure or are more invested in obtaining a favorable resolution, so they are willing to spend more time and effort. If the parties display a relatively low level of commitment to the process, then the mediator may wish to adopt a facilitative style of mediation. If the parties seem truly interdependent and relatively committed to the process, then it is wise to take the time necessary to try to achieve some of the deeper benefits of mediation (Bush and Folger, 1994).

Flaming and Reframing

As most of us have seen, people feel freer to express themselves via email than is the case in face-to-face communication. In online mediation it is common for angry disputants to say exactly what they feel even if doing so will escalate the conflict or result in retaliation by the other party. No-holds-barred name calling online is called “flaming”. Disputants commonly flame each other in the heat of the moment. Of course, parties in traditional mediation also lose their tempers and say things they later regret. But the problem is much more pronounced in the online environment where parties are not face-to-face and feel less shame when making rude, insulting, or otherwise unhelpful remarks. One way to overcome this problem is to run all communications through the mediator in a caucus-style format. By doing so, the mediator can choose when to directly forward communications from one party to another or, alternatively, when to work with disputants to reframe their positions into interests (Fisher and Ury 1981) or otherwise rephrase their statements to take away blame and accusations and focus on joint problem solving.

Cooling Off Periods

Sometimes online disputants get caught in a cycle of flaming and reflaming each other in an ever-escalating cycle of blame, name-calling, and hostility. In a traditional mediation this is the time when a mediator would likely call a caucus and separate the parties into two separate rooms. Then, the mediator would speak individually with each party in an effort to calm them down, use reality checks, possibly explain the utility of civility, and coach them individually in order to get the mediation back on track. This can be done in an online environment with one important caveat: when the parties are really fired up, they may break the mediation ground rules by going outside of the mediation format to send angry emails or make phone calls directly to each other, thereby leaving the mediator out of the loop. The few times I have asked disputants to observe a cooling off period in which they would not communicate with each other for some set period of time (e.g. 24 hours or 2 days), the disputants have generally disregarded this request. E-mail is just too easy to send and angry disputants sometimes lack the self-control necessary to stop themselves from flaming one another either inside or outside of the mediation forum.

When this happens the mediator has two options. S/he can tell the parties that mediation will be ended and the case closed by the mediator unless all parties can obey the mediation ground rules, which should include prohibitions against communicating outside of mediation and against flaming or prank phone calls. Yes, believe it or not, disputants will sometimes call long distance just to hang up on the other party or otherwise harass them. The second option is for the mediator to jump in and attempt some damage control by coaching the parties individually in order to reframe their comments into more productive statements, or otherwise working to de-escalate the conflict.

Techniques to Utilize

Delayed Reactions and the “Poker Face”

One great benefit of online mediation is that the neutral and the parties can read messages, pause to reflect, and then compose an appropriate response. This is helpful for mediators who have not fully perfected their “poker face” (meaning the ability to hide their emotions when surprised or shocked). Both disputants and mediators can use the asynchronous mediation format to their benefit in order to reflect upon settlement offers or other communications before responding. Additionally, if a disputant needs to pause the mediation in order to seek out legal or other advice, they may do so more easily than when the parties traveled to attend a traditional mediation appointment.

Perspective Taking

As is the case with traditional mediation, it can be very helpful to try to encourage each party to see the dispute from the other’s perspective. The mediator can play the role of “devil’s advocate” by explaining to each party how the other party feels and the reasons behind their needs and demands. If possible, the mediator can suggest to each party that they write a brief explanation about how they feel and why, and then this can be shared with the other party in a more authentic voice. Again, there is a role for coaching here as the mediator can work with the parties to remove attribution biases (Thompson and Nadler, 2000), and to reframe “you” statements into “I” statements, etc. The goal is to allow the disputant to communicate how they feel and what they need, but to do so in a way that the other party will be able to hear and absorb without becoming so defensive that the conflict escalates unnecessarily.

Use the 5-step Mediation Process

As the holy book of ADR relates (Getting to Yes by Fisher and Ury, 1981), the five steps of the mediation process include developing ground rules, sharing interests, developing objective criteria, evaluating options for settlement, and creating an agreement. These steps can definitely be accomplished online. Online mediation is mediation. The only difference is that the method of service delivery has changed. For example, mediators can decide to use their own ground rules or they can ask the parties to help develop them collaboratively. The mediator can explain the difference between positions (i.e. demands) and interests (i.e. underlying needs) and then ask the parties to share their interests with each other and with the mediator. The mediator can work with the parties to brainstorm a list of options while explaining the importance of separating this step from the step of evaluating options. In fact, this separation is easier to accomplish online as parties are not able to interrupt each other to voice disapproval of individual options the way they could in a traditional mediation. The mediator can discuss the idea of objective criteria with the parties and ask them “How will we know a good option when we see it?” in order to create such criteria, if necessary. Then, the mediator can assist the parties as they weigh and evaluate the options in an effort to reach an agreement. As is the case in traditional mediation, the parties are more likely to accept options and agreements that they come up with on their own, rather than those coming from the neutral (Deutsch and Coleman, 2000). Additionally, the mediator may wish to discuss implementation issues with the parties so as to avoid problems later. The good news is that all steps of this process can be accomplished online.

Summative Statements

Most mediator use summative statements periodically to recap what agreements have been reached and to clarify which areas of disagreement remain, or to generally remind all of the parties of previous settlement offers or other information of importance. These summaries are even more important for online mediation because the mediations often occur over the course of days or weeks. The mediator may be handling more than one case at a time. Reviewing the case transcript (another benefit of online mediation) allows the neutral to help remind himself/herself what ground has been covered and helps to keep the mediation’s momentum in spite of any lags occurring due to the asynchronous format. For example, if the mediator sends the complainant a message, the complainant may take a day or two to answer. If this delay occurs each time a message is sent, then the mediation may take longer to resolve, thereby requiring the mediator to keep each party appraised of progress or at least inform them that negotiations between the other party and the mediator are ongoing. Otherwise, the party that has not heard from the mediator recently may mistakenly believe that the mediator is not responding in a timely fashion.

Focus and Re-focus on the Process

It is common for disputants in mediation to occasionally confuse mediation with arbitration or adjudication. You know this has happened when they try to convince the mediator that they are right and the other side it wrong, as if doing so will influence the outcome of the mediation. This occurs in both traditional mediation and online mediation. However, it seems to occur with greater frequency online. While it is not completely clear why this is the case, I would guess that some disputants skim over descriptions of the process and the agreement to mediate in an effort to get started. Internet users have become very familiar with user agreements and other online forms that routinely require them to click “I agree” or “I accept” before proceeding. These have become so common that many users do not bother to read them and simply click to proceed. Perhaps online disputants are doing the same thing when asked to accept the agreement to mediate. For whatever reason, I find it frequently necessary to reiterate the goals of mediation (collaborative problem solving, forward focused, etc.) and to differentiate my role from that of a judge or arbitrator. I reiterate that it is less important to convince me that they are “right” and the other party is “wrong” than it is to work toward finding a solution that both parties will voluntarily accept. This understanding of mediation requires a significant change in the disputants’ mindsets and strategies that can feel awkward to them at first. Neutrals must often explain and re-explain the mediation process and mediation’s goals before it sinks in.

Reality Checks and Case Evaluation

The use of reality checks is not without controversy in the field of alternative dispute resolution (ADR). Mediators use reality checks for a number of reasons: to remind parties about the weaknesses of their non-mediation alternatives, to help disputants have realistic expectations for what can or can’t be achieved in mediation, or to tell them how their case or how a particular argument would fare in court. This last point falls into the definition of “evaluative” mediation rather than a purely facilitative mediation style. Some mediators avoid giving case evaluations (unless that is specifically what they were hired to do) because doing so can become a gray area when it comes to the “unauthorized practice of law” (see www.acrnet.org). Another reason to use reality checks and case evaluations sparingly is that party satisfaction tends to decrease with their increased use. Satisfaction increases when parties feel they have control over the outcome of their dispute without being pressured by the mediator to accept any particular settlement.

Regardless of the pros and cons of reality checks, most mediators use them to one degree or another. In online mediation it is common for parties to ask about their non-mediation options for settlement. While mediators cannot give legal advice, they can tell disputants that they have the same options as do traditional mediation participants. They can file in civil court, or if they feel a crime has been committed (such as fraud) they can pursue criminal charges. If it is an eBay transaction the disputant can file a fraud report with eBay. If other eBayers have has similar problems with the buyer/seller, then eBay can ban them for their site.

For many online disputants their best alternative to a negotiated/mediated agreement (their BATNA, see Fisher and Ury, 1981) is not good due to the geographic distance between disputants, jurisdictional questions, and/or the small value of their claim. Therefore, reaching agreement through online mediation may appear to be an attractive option.

There are times when one or both parties will ask for the neutral to evaluate their case. For example, one or both parties may ask me to read the online auction description of the item in dispute and render my interpretation of what the sale should include or not include. While there is likely to be some variation among mediators as to this practice, I will only render my opinion after the following conditions are met: The parties have reached impasse and it is clear that mediation will end as unresolved; both parties have requested and/or given their approval for me to give my opinion; and I have clarified with them as to whether the opinion will be binding or advisory. Clearly, at this stage we have switched into an arbitration mode. There are times when both parties ask for my opinion as a neutral third party and agree to be bound by it. Under these circumstances I feel comfortable offering my opinion as to a fair outcome for the case. I generally do not state how I feel a case would fare in court. This is important since the case may overlap multiple jurisdictions and no one could be an expert in all possible international and state jurisdictions. Instead, I state my opinion as an impartial 3^rd party as to what a fair outcome would be under the circumstances.

Overall, I have had success in this practice, but I use it very sparingly--- approximately 3-5% of cases. In general, when both parties have agreed to be bound by my decision they have followed through with the implementation of the decision. As is the case with mediation settlement agreements, the parties are asked to click on “I accept” to indicate they agree to have me give an opinion or evaluation of their case.

Conclusions

Online dispute resolution has moved past the stage of asking “can it be done” or “should it be done”. Online mediation, arbitration, and facilitation is being done. No doubt coaching, ombudsing, and other ADR services either are being offered online or will be in the future. At this time we should turn our attention to questions of application and technique. How can online services be offered in a way that preserves the integrity and the benefits of the processes, while making them available to disputants who cannot or will not use an offline process? How can we improve the skills of online practitioners? Which techniques from offline ADR are applicable online and which should be avoided?

This paper is meant solely to begin this discussion in the hopes that others will join in and share their experiences in order to start building a body of knowledge that academics and practitioners can use to improve both theory and practice.

References

Bush, R.A.B. and Folger, J.P. The Promise of Mediation: Responding to Conflict Through Empowerment and Recognition. San Francisco: Jossey-Bass, 1994.

Deutsch, M. and Coleman, P. (eds.) Handbook of Conflict Resolution: Theory and Practice San Francisco: Jossey-Bass, 2000.

Fisher, R. and Ury, W. Getting to Yes: Negotiating Agreement Without Giving In. New York: Penguin, 1981.

Raines, S. “Can Online Mediation Be Transformative? Tales from the Front” Conflict Resolution Quarterly Forthcoming.

Sander, F. and Goldberg, S. 1994. “Fitting the Forum to the Fuss: A User Friendly Guide to Selecting ADR Procedure” Negotiation Journal 10(49).

Thompson, L. and Nadler, J. “Judgmental Biases in Conflict Resolution and How to Overcome Them” in Deutsch and Coleman (eds.) Handbook of Conflict Resolution: Theory and Practice San Francisco: Jossey-Bass, 2000.

Websites

Squaretrade.com, online mediation service, http://www.squaretrade.com, last visited on 30 June 2004

Association for Conflict Resolution, http://www.acrnet.org, last visited on 30 June 2004

Online Newsletter of the Online Dispute Resolution Section of the Association for Conflict Resolution http://www.odrinfo.org, last visited on 30 June 2004