By: Jennifer Johnston Terando, R.N., Esq.
An MCLA Certified Zoom Panel Mediator
The roots of Online Dispute Resolution (“ODR”) trace back to eBay, which created an ODR program where, once a buyer or seller opened a claim, mediation was conducted through asynchronous email communications between an eBay mediator and the parties, individually. Since then, ODR has developed in additional formats from text programs, to artificial intelligence platforms, such as Smartsettle, where unique algorithms are subject to patent protection. As video-conferencing has reached new peaks of sophistication, ODR has expanded to include the hosting of “traditional” mediation, where mediators, lawyers and litigants mediate in-real time on-line, which is the focus of this article.
The Conditions are Ripe for Implementation of ODR:
In the wake of coronavirus, Zoom usage spiked almost overnight from an average of ten million daily users to an average of two hundred million daily users. Even prior to the pandemic, which altered life as people knew it, other factors were already paving the way for ODR. Between 2005 and 2019, the number of “super commuters” who travel more than 90 minutes each way to work increased by 31.7 percent, and the number of Americans who work from home saw an even sharper increase of 76.0 percent. The growth of these two groups is driven by changing preferences, improved technology, and a lack of affordable housing in many of the nation’s hottest job markets. The legal profession, which just a handful of years ago, knew of no law firm format beyond brick and mortar, has seen a vast growth and acceptance of the virtual firm. And perhaps the most influential factor is over the past ten to fifteen years, the millennial generation has become members of the bar. The first generation of lawyers raised on technology, have no trouble merging its benefits into the practice of law. Mobility in their practice is an expectation.
Is The Legal Profession Ready To Implement ODR?
ODR has been resisted by both mediators and lawyers, who describe dispute resolution, in particular mediation, as a deeply human interaction, not ripe for an on-line process. Legal scholars have referred to mediation as “an island of stability in a sea of change”. Does this mean mediation is stable or that there’s been a lack of forward progress?
Technology has immense impact on how we live. Behaviorally, we’ve changed how we do things from banking to shopping to looking for a life partner. As a result, we’ve shifted the way we seek, process and analyze information and the degree to which we concentrate on tasks. Many aspects of the human experience have become facilitated by technology or occur in a technology immersed environment. To remain viable, traditional mediation practice must evolve. Not minding the gap may make the profession and process of mediation unappealing to the next generation of mediators, lawyers and litigants.
Logistics of ODR:
Multiple video-conferencing platforms have the technical capability to host on-line mediations, with Zoom, seemingly, used with the most frequency. For ease of understanding, this article will describe a Zoom hosted mediation.
Zoom allows for most of the convention of an in-person mediation to exist on-line — albeit, with a bit of a technological twist. Once a Zoom mediation is set, the attendees are provided an on-line invitation, usually with a password. When an attendee signs onto the platform for the mediation, they will enter a virtual waiting room, similar to arriving in the mediator’s office. The mediator will admit each person from the waiting room either into the shared conference room for a joint session, or into separate breakouts for caucus.
The break-out room feature on Zoom allows a mediator to place one or more attendees in a virtual room. Using a two-litigant auto collision case as an example, a mediator might place the plaintiff and their lawyer in one break-out room, and the defendant, defendant’s lawyer and the insurance adjuster in a second break-out room. The mediator can create further break-out rooms, if they desire, for example, to speak to a lawyer outside of the presence of their client or if the defense counsel in a multi-litigant case desire to speak to one another. With the ability to form up to fifty break-out rooms, it is possible to accommodate a multi-party mediation. The mediator has the ability to move between the different break-out rooms, mirroring the in-person mediation where the mediator moves between physical rooms. When the mediator exits a break-out room, the remaining participants may speak privately.
The “Share Screen” feature on Zoom provides several options to facilitate the mediation. For mediators who use a whiteboard, there is an electronic whiteboard. An iPad can even be connected to the meeting to allow the mediator to write with a stylus on the whiteboard. Also, any files on a user’s computer can be shared with all of the participants, such as, contracts, excerpts of medical records or depositions, or Day in the Life videos. When a settlement is reached, the settlement agreement can be drafted in Word or any other program, while the other parties observe in real-time. Some programs, such as Google Docs allow all of the parties to work on the document in real-time, suggesting changes. This may be more productive than the in-person mediation where a triplicate form is filled in or multiple lawyers hover around a laptop as the document is drafted. Via use of Docu-sign or a similar application, the Settlement Agreement can be signed by all parties prior to the conclusion of the mediation. The mediator, as the meeting host, also has the ability to turn-off the share screen function. These are the pertinent mediation features, but Zoom provides many others. It is recommended users spend time on the Zoom website, where there are informative tutorials and sign-up for an account (there are free versions) to orient themselves to the program prior to a mediation.
Benefits of ODR:
• Accessibility: The increased acceptance, sophistication, reliability and availability of technology in society coupled with decreased cost makes ODR accessible. In turn, ODR may make mediation accessible to a litigant located far away. When a decision-maker is located out of state, rather than the requirement they “be available by phone” they can sign on and participate meaningfully in the mediation.
• Social Distancing: One of the most cited terms, from our newly acquired pandemic vocabulary, is leading the pack of top reasons to use ODR. With civil courts nearly closed and an anticipated, unprecedented backlog of cases, ODR provides a viable alternative forum to conduct mediations and resolve cases, providing access to a mediator within days or weeks.
• Time-Saving: In an-person mediation, participants drive to a physical office, dealing with traffic, parking and waiting for the mediation to begin. At the conclusion of the mediation, they do it all in the reverse—oftentimes in rush-hour both ways. With ODR, participants simply sign on or off the platform from the comfort of their home or office. A significant amount of time is captured that can be put forth on other legal work or be spent with family. This may also allow a litigant to take a half-day off of work, instead of a full-day, which is often a presents a challenge for litigants.
• Cost-Efficient: The cost of travel and facilities are eliminated. The only requirements are a Lap-top, iPad or even a phone (although a larger screen is more ideal) and a secure internet connection, which most people have or can obtain access to.
• Document Sharing: Allows all participants to “hold” documents in their hands.
• Non-Verbal Cues: As participants are seen live, the ability to observe non-verbal cues are present.
• Safety and Comfort of Clients: The benefits of ODR are often discussed with a light toward the benefits lawyers reap from the process. There are also litigant benefits. In-person mediation sometimes presents physical and/or social-emotional burdens to the litigants, which can be reduced or alleviated via ODR.
A litigant may wish to avoid direct contact with another, who may be a person with whom they shared a long personal relationship, which has deteriorated, or a person who is intimidating to them. When a litigant appears remotely from a secure space, such as their home or office, the concern of “running into” the other litigant is eliminated, making the mediation a less anxiety-provoking experience. Removing such stressors, may open-up a participant’s communication, as a person may hold back on their true feelings, for fear of the discomfort of then seeing the other litigant in the bathroom, elevator or parking garage. While a lawyer may feel awkward about recommending on-line mediation to their client, there’s a good chance the client may breathe a sigh of relief.
• Multiple-Mini Sessions: Often a mediation concludes, because one or more parties do not have the information they need, or new issues are raised, requiring further work-up to consider increasing the authority limits. With ODR, there’s an option to pause a four-hour mediation, at say, the two-hour mark and reconvene at a later time to conduct the remaining two hours, once the issues, which would’ve otherwise concluded an in-person mediation have been addressed. While all good mediators follow-up through telephone or email, formally reconvening ODR for the remainder of the session may increase odds of settlement. Flexibility and decreased extraneous costs offered by ODR make this an option uniquely available to ODR. If a Zoom meeting is scheduled as “recurring”, the meeting ID can remain the same for one year.
Drawbacks of ODR:
• Less Natural: A study on videoconferencing revealed, while brief silence may feel natural in-person, a transmission delay of 1.2 seconds on the telephone or a conferencing system may lead one user to perceive another as not interested or less friendly. Videoconferencing use has also been compared to being on stage, where the fact that a user sees themselves on camera makes them more self-conscious, feeling a need to perform. Multiple images of people looking back at a person enhances this feeling, making it difficult for a person to not continually look at themselves on camera.
• Rigid Positions: The possibility has been raised that parties may be more apt to maintain rigid settlement positions, when they are in separate locations, without direct human contact.
Determination of whether a case is better suited for ODR or in-person mediation should include a balancing of the benefits and drawbacks, as they relate to the particular case and litigant with great deference provided to a litigant’s preference. One should exercise caution in correlating this decision with case size or value, as there will be situations where a litigant in a sizeable case places a high-priority in participating from a location, such as their home, where they feel most comfortable and secure.
Several bodies, including the International Council for ODR, have standards in place, which assist mediators in developing the best practices for successful ODR. In summary, these standards guide mediators to assure the platform is accessible to all parties, that in addition to dispute resolution skills, the mediator possesses the technical acumen to facilitate ODR, that the confidentiality and security of the process is maintained and that all participants are made aware of the risks and benefits of ODR. Most of these requirements are addressed through the mediator’s guidelines, which are addressed in the next section.
While a mediator has an ethical obligation to assure all parties are treated with dignity and that marginalized voices are heard, the use of technology may present unique scenarios, such as when a litigant appears to be intimidated by the technology. A mediator must work to assure space is created for that person to speak.
ODR presents the opportunity for mediators to mediate on a national or international scale, which also creates an ethical obligation for a mediator to familiarize themselves with the laws of all implicated jurisdictions.
Steps for Successful ODR:
As Alexander Graham Bell said, Before anything else, preparation is the key to success. It is imperative to work with a mediator who has invested the time to thoroughly understand the on-line platform and to assure the participants are prepared for the ODR, including providing on-line guidelines to all participants. The guidelines should cover logistics including: how to sign on, assuring the ODR is conducted in a quiet environment; clothing and lighting recommendations to assure attendees appear clearly on screen; bandwidth recommendations to prevent technology interruption and a contingency plan for any technology glitches, such as the mediator’s cell phone number to keep all parties connected, while the issue is resolved. The guidelines should also set forth the statutory and ethical confidentiality obligations. ODR should not be conducted in public forums, such as a library or coffeeshop where others can overhear and where the wi-fi is not secure. ODR should not be recorded. A third litigant cannot be present in earshot of the mediation.
To further assist in a smooth ODR process, a mediator may offer a pre-ODR Zoom session to allow participants to familiarize themselves with the platform. Some mediators may even hold their convening calls on Zoom.
In step with preparing for success, the Mediation Center of Los Angeles, a project of the Valley Bar, which is the only Civil Mediation Resource Vendor to be awarded a contract by the Los Angeles Superior Court to provide online mediation, has implemented an extensive Zoom Certification process. The process includes training and testing to assure their panel mediators meet the highest ethical and technological standards for ODR. Only those mediators who have successfully completed the certification process are authorized to conduct ODR.
With each challenge to human civilization, individuals who are prepared to meet new and changing conditions will be better prepared to thrive. Lawyers and mediators will need to adapt to the new reality of a changing world.
Jennifer Johnston Terando, R.N., Esq. is a mediator and lawyer, with a concentration in the area of health law and medical-legal cases.
She is an MCLA panel member and Certified Zoom Mediator.
She can be reached at firstname.lastname@example.org.