Online Dispute Resolution Provides Options to Resolve Conflicts (Without the Courts)
Last Friday, I attended a webinar produced by the American Bar Association on ODR, Online Dispute Resolution. The participants included Colin Rule of Tyler Technologies, Amy Schmitz a Professor of the University of Missouri, and Professor David Larson of Mitchell Hamline School of Law. Speakers addressed several important topics about Online Dispute Resolution that help me in moving much of my mediation practice online in the coming weeks.
Competency
Speakers first addressed competency. They urged mediators to be aware of their competence by understanding the subject matter, or area of law implicated in the conflict. This ethical requirement adopted by the ABA restricts mediators to cases involving subject matter and issues that they understand. My thirty-plus years as a practicing attorney provide me with confidence in understanding the legal background in the cases that I mediate. The webinar speakers explained that the competency extends to the mediation process and the technology facilitating the process. As I watched, I appreciated the years I've spent learning technology, especially video-technology. I began with this in 2011 when I taught an online course at Eastern Mennonite University in Restorative Justice using a platform developed by Adobe and has continued in various formats I’ve included in my legal and mediation practice.
Formats
Presenters described the formats for online dispute mediation, including Skype, GoToMeeting, and Zoom. I moved to zoom in 2015, and continued in 2016 when I co-created a group of the first set of online spring conferences for the Virginia Mediation Network. I was never a big fan of Skype, it seemed to have a lot of glitches. I finally fell out with it in 2011 when during a conference, we skyped in a speaker from the State Bar. She had difficulties logging on before her talk beginning and did not realize that she was miked and live at the time. She wound up, articulating her frustration over the introductory remarks offered by a local judge! Zoom is much more comfortable. Since 2015, I’ve used it for meetings to prepare for mediations, communicate with clients who can't take off of work and my own workshops for my office. In 2017, my mom turned 80 and wanted to a birthday party to include the entire family in a 5-mile hike. We shared in planning the party, using zoom to connect us, even though we lived all over the United States. I'll continue to use zoom as I increase my ODR practice.
My mother’s birthday 5 mile hike with children and grandchildren was planned using zoom.us in 2017.
Advantages and Disadvantages
The program discussed the benefits of ODR. I was already aware of the great advantage provided when clients could participate from any location. The increasing need for physical distancing during the Covid-19 pandemic requires that we mediate from a distance. Of course, there are disadvantages to taking mediation and arbitration online. We cannot guarantee privacy since other people may be present in the actual room or environment where the mediation occurs. Other confidentiality issues are easily managed with the protractions provided by zoom.us and the privacy that I have in my home office as well as my office locations. The most significant disadvantage I find is that I love to be in the room with everyone. I learn so much from watching how each of the participants' moves or talks. While I can capture some of it on my screen, there is nothing like being the room together!
Opportunities
Online Mediation permits the secure sharing of documents. Using the platform for my webinars, I usually show my powerpoints during the webinar. In divorce mediation, I often put up the asset inventory in a spreadsheet, and we go through it together. Once we get close to an agreement, I may share that document and go through and make the changes as the parties want them changed. While most of the opportunities I’ve explored relate to online alternative dispute resolution, British Columbia has adopted an online format within the court system to resolve certain civil disputes and reports a great deal of success with their initial efforts.
Reminder: Have a Back-Up Plan
When we schedule mediations or meetings online, we need to have a backup plan. When I schedule an online meeting or mediation, I provide both a video sign in and the audio number. In some situations, when the internet is slow, we use the audio by phone and silence it on the computer. The key is to make sure clients can check in if something does go wrong!
Conclusion
The ABA did a great job pulling this program together on short notice. It helps me to focus on this part of my practice and work to meet the challenges that the future holds.