By Robert E. L. Wright
Online Dispute Resolution (“ODR”) may refer to any form of alternative dispute resolution conducted with the aid of a computer. Two in particular, mediation and arbitration, are preceded by a variety of adjectives: Remote; Virtual; Cloud; Videoconference; etc. Here, ODR will refer specifically to mediations and arbitrations conducted by videoconference without actual face-to-face, in-person meetings. (Whenever information would pertain equally to mediation or arbitration, the term mediation is used.)
Aspects of ODR have been with us in one form another for decades. ODR includes a variety of remote dispute resolution mechanisms, from negotiations by telephone and email, to arbitrations conducted without any witnesses based on documents supplied via email or facsimile. But arbitrations and mediations conducted exclusively via videoconferencing are the subject of this article.
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The Case for and Against ODR
(with Rebuttal)
Traditionally, both mediation and arbitration have been conducted almost exclusively in face-to-face meetings. Yes, some processes are held with one or more participants appearing by phone or videoconference, but those are most often exceptions, not the rule.
Early forms of ODR have been around for the past few decades. However, until videoconferencing became affordable and ubiquitous, most such ODR processes involved a simple typed exchange of monetary settlement offers and counteroffers through an impersonal platform; 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) video conferencing via Skype, Facebook, Google Duo, Go To Meeting, WebEx and Zoom, etc. and ODR becomes virtual reality.
Although there are many platforms for videoconferencing the favorite of mediators and most American courts is now Zoom. As noted above, Zoom provides free software for virtually any device and is extremely simple to use, both for hosts and guests. Using ODR platforms such as Zoom, neutrals now convene and conduct their virtual dispute resolution processes completely by videoconference. The form and substance of such processes mirror those of a traditional session conducted in person. The neutral or a provider organization schedules and “hosts” the process with parties and counsel attending as the host’s “guests.”
Agreements can be signed remotely using DocuSign and similar services.
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Safety & Social Distancing
With the advent of Zoom, ODR has been able to step up its game to rival a virtual face-to-face meeting with the added benefit of not having to inhale the same air or touch the other participants or any objects they touched in the mediation suite. With ODR, there is zero chance of contracting a virus from another participant when you can stay isolated in your own home or office yet still see and hear one another almost as if you were together in the same room. While you lose view of their feet and olfactory information (can you smell deception?), you can still observe upper body language, facial expressions (focusing on them at will), tone of voice, nervous tics and tells, and signs of anxiety, all of which conveys most of the information we would obtain in person.
Currently, COVID-19 is an extremely contagious and sometimes lethal coronavirus pandemic affecting the entire world. It appears the principal way the virus spreads is via human-to-human contact, especially through inhalation of the virus from a human carrier. As of this writing, there is no known cure and no proven vaccine to protect people from contracting the virus. As such, reducing human-to-human contact has proven effective in slowing the spread of the disease, but has crippled the economy and the ability of litigants to resolve their disputes through trial or alternative dispute resolution.
As the majority of Michigan mediators are nearing or over 60 years old, they are in a vulnerable group of Americans most likely to succumb to the effects of a virus. As such, 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, worse, 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 do so using ODR, but will stop hosting face-to-face hearings and retire altogether if their only choice is to expose themselves and their loved ones to a deadly disease. To preserve that pool of wonderful talent, ODR may be the only option.
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Abusive Behavior
Another benefit of ODR is that it eliminates the possibility of physical violence occurring on the property of the attorney or mediator where the dispute resolution process is being 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. Indeed, inviting each spouse to a private session to check out the technology, provides cover for the mediator to conduct the screening discreetly.
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Convenience
The convenience factor is obvious: no issues with transportation, parking, security checkpoints in courthouses, flight delays/cancellations/departure times, etc. It makes it far easier to schedule a mediation when flight times are not a factor. With ODR, the commute may simply be the time it takes to get from the kitchen to the room where the computer is located.
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Cost Savings
Obviously, reduced travel time for attorneys translates to a reduction in fees billed to clients. 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.
Specifically, Zoom provides a free version of its software with unlimited one-on-one meeting time, but only 40 minutes of time per session for meetings with three or more attendees. This allows parties and attorneys an opportunity to try the software with one another, friends or family members free of charge, which also reduces time spent on tech issues during the mediation if participants have already installed and used the software.
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Promotes Better Behavior by Participants
In my experience, ODR reduces disruptive behavior with name-calling and angry outbursts; people just seem to behave more civilly on videocasts than they do 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 also saves time and promotes efficiency resulting in reduced professional fees charged to the parties.
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Privacy & Confidentiality Concerns
There have been a few instances of “Zoom-bombing,” where uninvited internet trolls gained access to Zoom sessions and posted racist, sexist and pornographic messages and images. This primarily involved large groups, shared passwords (or no passwords) and wide dissemination of access information. I am not aware of a single instance of an uninvited guest gatecrashing a Zoom mediation or arbitration. Moreover, upon learning of this issue, Zoom responded with four tools available to all meeting hosts; a must for neutrals.
1. Meeting ID & Password. Hosts for each Zoom mediation assign a unique meeting ID and password required to gain access to the mediation. While they can be shared with unauthorized users, there are three more hurdles for a would be gatecrasher to overcome.
2. Waiting Room. The waiting room keeps gatecrashers from entering a mediation. Once inputting the confidential meeting ID and password, guests enter a virtual waiting room where they are held incommunicado in a virtual “cone of silence.” They will 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 any 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, barring any further admissions.
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 say hello and introduce myself in each private room before beginning the actual 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 only those 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 to this absolute privacy 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. I have requested that Zoom permit the host to communicate with any participant, no matter where they are located, but with the current volume of support requests, it may be a while before I receive a response.)
Collectively, these four security features should allay any fears concerning privacy and confidentiality for participants.
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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. However, I am aware of no evidence of a breach to date. Some contact information was once shared with Facebook, but that process was discontinued by Zoom in early 2020.
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.
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Loss of Personal Contact
Although there is no personal contact as noted above, ODR participants do get to see and hear one another. Where there is animosity, removing personal contact may be a benefit. “I will miss nonverbal cues” seems to be a theoretical objection rather than one grounded in experience. In fact, because a speaker can look through their camera lens directly into the eyes of every participant simultaneously, Zoom actually allows an opportunity not available in a face-to-face mediation. The best advice I can give to a reluctant participant is to try Zoom for the scheduling conference and observe how much information they can obtain through the microphone and camera before writing off ODR.
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3rd Party Participation
While it is possible for non-parties to eavesdrop and to coach parties, this is equally possible when a participant in the physical world is left alone in a private room or uses an electronic device to record or broadcast proceedings surreptitiously.
Yes, 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 would prefer to have the new spouse directly involved in the negotiations to ward off Monday morning quarterbacking and undermining a proposed settlement agreement.
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Parties’ Perspective of ODR
Zoom mediation participants require very little instruction. I provide a one-page handout with basic instructions on installing the software along with my invitation to participate in the actual mediation. 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 installation (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.e., no pets, small children, telephone calls, electronic interference.
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 which are used to protect their privacy.
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ODR from the Mediator’s Perspective
Zoom videoconferencing requires a strong, secure internet connection and a backup plan in case the technology fails. Use Zoom to conduct the preliminary hearing and scheduling conference. Employ all the security features discussed above and like the cab driver said when asked, “How do I get to Carnegie Hall?” Practice, practice, practice! Practice with colleagues, family, friends, and clients to help them overcome any techno phobia they may be experiencing. 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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Robert E. L. Wright is a pioneer in mediation and ADR in Michigan. After a quarter century with a large Michigan firm, he left to develop his own arbitration and mediation practice, The Peace Talks PLC, and became a member of Professional Resolution Experts of Michigan (PREMi, https://premiadr.com). A perennial Best Lawyer™ and Super Lawyer™, he has spent more than 35 years litigating disputes and representing clients in the courts, arbitration and mediation. He now devotes himself to arbitrating and mediating disputes involving over one thousand individuals and businesses. He mediates both business and individual matters, including high asset (and high conflict) divorces. Wright trains other mediators in both basic and advanced courses. In addition to PREMi, 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 for his efforts to promote alternative dispute resolution throughout Michigan.
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