(Cite as: 32
N.M. L. Rev. 27)
Winter, 2002
Frontiers of Law: The Internet and Cyberspace
*27 CYBER-MEDIATION:
COMPUTER-MEDIATED COMMUNICATIONS MEDIUM MASSAGING THE
MESSAGE
Llewellyn Joseph Gibbons, [FNa1]
Robin M. Kennedy [FNa2]
Jon Michael Gibbs [FNa3]
Copyright © 2002
New Mexico Law Review; Llewellyn Joseph Gibbons, Robin M.
Kennedy, Jon
Michael Gibbs
But I'm just a soul whose
intentions are good
Oh Lord, please don't let me
be misunderstood. [FN1]
INTRODUCTION
The course of ecommerce is not always smooth. Disputes are
inevitable. These disputes will have to be resolved if ecommerce is to develop
to its full potential. Alternative Dispute Resolution (ADR) is a range of
processes for resolving online disputes. [FN2] Businesses and consumers who engage in ecommerce are often more
willing to mediate than to arbitrate their disputes in an online forum [FN3] because mediation is a
voluntary process in which a third-party facilitator assists the parties to the
dispute to arrive at a mutually agreed upon resolution. [FN4] Generally, mediation requires
a neutral third party capable of protecting the integrity of the proceedings
and facilitating communication between the parties. [FN5] "For mediation to be
most effective, however, the parties must perceive the mediator to be
impartial, perceptive, persuasive, trustworthy, interested, innovative and prepared."
[FN6] The *28 parties must enter into
mediation with good faith [FN7] and with the intent to resolve the dispute. [FN8] The parties are typically
present. This is problematic in the ecommerce context. Legally, and more
importantly for effective online mediation, virtual presence may be enough; but
virtual presence may not be as effective in breaking down walls and building
trust because many individuals are inexperienced at developing relationships
using computer mediated communication. [FN9] The distinguishing characteristic of online mediation is that the
mediator and the parties do not share simultaneously the same physical
location. [FN10] Physical presence, at least
to some mediators, is the sine qua non of mediation.
This Article examines the feasibility of online mediation. It evaluates some
modalities, presents cross-cultural mediation as a theoretical construct to
describe online mediation, and recommends guidelines for the practice of online
mediation. Some commentators have observed that ideal online mediation remains
an aspiration, suggesting that technologies such as videoconferencing are the
"obvious solution to the lack of face-to-face encounters." [FN11] Yet others have found that
online mediation, even at the email level, is an acceptable, if not preferred,
method of resolving some types of disputes. [FN12] This is a false dilemma. Mediation exists on a continuum from
face-to-face to pure online mediation. Most of the legal literature evaluating
the potential of online mediation can be best characterized as the battle of
the anecdotes. No legal scholars have looked at the rich social science [FN13] literature on the effects of
computer-mediated communications. [FN14] The authors hope to begin to rectify this neglected
interdisciplinary area of scholarship and to apply these lessons to online
mediation. Informed by the computer-mediated communications (CMC) literature,
online mediators will make a substantial contribution to dispute resolution.
Part I of this Article analyzes the need for online mediation, the capability
of online mediation to meet these needs, some common misconceptions accepted in the *29 legal-mediation community, the
technological infrastructure on which online mediation takes place, and
identifies some of the associated real world legal issues raised by technology.
Part II discusses differences between physical presence face-to-face mediation
and online virtual mediation, examines a sample of the many scientific studies
of computer- mediated communication, and postulates how these studies should
inform views on whether and when online mediation is feasible. Part III
describes some existing online mediation programs as models of what might be
and describes various software programs to facilitate the mediation process.
Since no article on mediation would be complete without a simulation, part IV
applies this Article's lessons to a paradigmatic hypothetical.
Finally, the Article concludes by taking the position that although online
mediation is still in its infant stages, it has the potential to provide new
and creative methods to facilitate the resolution of the entire gamut of
disputes from the easily resolved to those that are intractable. If online
mediation is to be efficacious at resolving disputes, future efforts at online
mediation must be informed by both the experiences of the mediator and the
existing research in computer-mediated communications.
I. PRIMER ON
ONLINE MEDIATION
At a minimum, online mediation is feasible only if the technology permits it, the law allows for it,
there is a need for it, and it can satisfy this need. This section will discuss
the social, technological, and legal predicates necessary for online mediation.
A. Background
Any discussion of online mediation requires an analysis of the context [FN15] in which the mediation takes
place. Technology prescribes how individuals interact on the Internet and the
tools that will be available to an online mediator. Internet technology also
raises serious concerns regarding the legal context of the mediation. Online
mediation must have a connection to a geographic sovereign. This sovereign's
laws will govern the mediation. This section will discuss how available
technology and law define the power relations and tools available to the
disputants and the mediator.
1. Technologies/Communication
Modalities
Online mediation will take place on the Internet so it is useful to summarize
briefly some important characteristics of the Internet and how individuals
interact using the Internet. The Internet is "an international network
of interconnected computers." [FN16] More than 200 million people worldwide communicate on the
Internet. [FN17] *30 Access to the Internet is
obtained through a variety of sources. Some individuals access the Internet through educational
institutions, employers, and public libraries; but most users access the
Internet at home through an Internet Service Provider (ISP). [FN18] These services can provide
electronic mail (email), [FN19] access to the World Wide Web (the Web) [FN20], instant messaging services,
videoconferencing, and other forms of digital data transmission. [FN21] Together, these services
comprise "cyberspace"-the virtual world "located in no
particular geographical location but available to anyone, anywhere in the
world, with access to the Internet." [FN22] The concept of "cyberspace" is inherent in
"the electronic nexus between the individual, the networks, and other
individuals." [FN23]
People build strong communities on the Internet. [FN24] Technology defines
communities in cyberspace. Although email is the predominant form of Internet
communication, other technologies facilitate communication and community building
online. Generally, as communications media become more interactive, users find
it easier to develop online relationships. Passive websites are the least
interactive and so provide minimal opportunities to develop an online
relationship. AOL's Instant Messenger; Internet Relay Chat (IRC), a form of
live chat; [FN25] MUDS; [FN26] and videoconferencing
programs such as Netmeeting [FN27] have also become quite popular for facilitating
"real-time" discussion and community building.
*31 Some online
communities exist largely through email and may be as cohesive as a group of pen
pals. [FN28] Some communities are fixed
with long-term participants while others are transitory. [FN29] Other communities, such as
MUDs, are highly interactive in real time. [FN30] In these communities, individuals develop personae and exchange
information in a virtual environment of their own creation. [FN31] Some communities like the
World Wide Web may be a heterogeneous mixture of different types of communities.
For some users, the Web is an old fashioned general store where people meet to
exchange gossip; for others, the Web is merely a modern shopping mall or
tourist center where one goes for impersonal commerce or to see the
"sites." The individual's relationship to a community is largely
defined by the communication technology, so the individual may have a very
simple superficial connection to the community or a very complex, enduring
relationship, depending on the technology. [FN32]
These communal loyalties affect how the individual relates to others in
cyberspace. Each community has its own customs and traditions that must be
considered when mediating an online dispute. Within any of these groups, there may
be a few, or in the case of Usenet, literally thousands of sub-communities,
many of which have nothing in common but those similarities forced on the
community by a shared technology. [FN33]
While these technologies create and define communities online, they also
represent tools that will be useful in mediating online disputes. Most ecommerce relationships
will begin and exist entirely online. Ecommerce disputes will arise out of
commercial relationships begun in each type of online community. Ecommerce is
more than just business-to-business or business- to-consumer, rather it
embraces smaller consumer-to-consumer transactions as well. Frequently, as in
any real world commercial relationship, social, cultural, and other
non-economic considerations will affect dispute resolution. These
considerations may be a function of the technology that initially created the
relationship and course of business that led to the dispute. Mediators must
understand the technology that created the environment that nurtured the
commercial relationship. The authors contend that the technology that
facilitated the creation of the relationship will adequately serve to resolve
disputes arising out of that relationship. Disputes arising from complex
relationships require either sophisticated communications media or simple
communications media used in sophisticated ways over a period of time by the
parties to build the relationship. In either case, the same media should be sufficient
to resolve ecommerce disputes. Therefore, online mediation will be adequate in
most situations to resolve ecommerce disputes.
The following basic tools will be available to online mediators.
*32 a. Email
Email, or Electronic Mail, is ASCII-text [FN34] data sent via the computer from one person to another. Email is ubiquitous. Many companies
provide free email accounts, for example, Hotmail, Yahoo, and Excite. This type
of mail is called IMAP mail [FN35] or web-based mail. Other individuals may receive email through a
contract with an ISP. This type of mail is usually POP mail. [FN36] Email is instantaneous and
the turn-around time is minimal. Email may also contain digital data files.
These files may contain text, music (.mp3), still-photographs or images (.jpg),
motion pictures (.mpeg), and exact replicas of an original document (.pdf).
Email does not require simultaneous interaction. Yet, if desired, all parties
can participate simultaneously without conflict. Messages can be ordered or
prioritized as a ready reference for future discussions. [FN37] For example, the parties may
raise numerous topics, themes, and interests. Upon discovery of these issues,
the online mediator may identify and thread messages so that the mediator and
parties can identify and respond to separate lines of thought. Alternatively,
the mediator may drop unproductive lines of discussion. Email also saves time
"because people write more slowly than they speak, but read faster than
they speak." [FN38] Also, readers can ponder or ignore messages based on the
importance of the message to the proceeding. The media richness of email may be
increased using textual or graphic paralinguistic signals. [FN39]
Email also permits the mediator and participants to control their self-
presentations. Irrelevant factors such as gender, race, ethnicity, age, and disability in
oral/auditory communication are not readily revealed using email. Yet,
individuals can reveal their true feelings. Online venting of anger and
frustration in written words may cause the writer to spend time referring to
the cause of his/her emotions. Additional time for reflection while typing
affords the emotionally upset person a chance to reconsider the statements
before sending them. Email mediation may also address fairness and political
concerns over the physical, psychological, and economic dangers of mediation to
women, the poor, and the less powerful. [FN40] At this point in time, ease of use, low cost, and narrow
bandwidth make email the optimal communicative medium for online mediation of
ecommerce disputes.
On the downside, email relies entirely on written language. Language may divide
communicators into the "in group" of those who understand and the
"out group" of *33 those who do not. [FN41] To the extent that language differences increase, mistrust,
concealment, and inflexibility also increase, as does the risk of communication
breakdown. One answer to the language barrier is employment of a mediator who
is a translator. [FN42]
b. Instant
Messaging
Instant messaging is "a type of communications service that enables
[the user] to create a private chat room with another individual. Typically,
the instant messaging system alerts [the user] whenever somebody on your private list is online.
[The user] can then initiate a chat session with that particular
individual." [FN43] Chat is "[a] form of interactive online communication that
enables typed conversations to occur in real-time. When participating in a chat
discussion, [the user's] messages are instantaneously relayed to other members
in the chat room while other members' messages are instantaneously relayed to
[the user]." [FN44] A chat room is a
site on the World Wide Web
where any number of computer users can type in messages to each other (chat) in
real time, creating an online conversation. These messages usually appear on an
area of the screen next to the user's nickname or handle. Most chat rooms have
a particular topic (which [the user is] expected to discuss) but there are some
that are purely for meeting other people. Some chat rooms are designed as elaborate
3D environments allowing a [user] the ability to select an avatar that
represents [the user] in this meeting place. [FN45]
Instant messaging has many of the advantages and disadvantages of email, but
instant messaging allows for faster participation and permits the participants
to reach a settlement more quickly. Chat rooms permit simultaneous conversation
without interruption. Chat rooms offer correspondents certain paralinguistic,
proxemic, and kinesic advantages. [FN46] As with email, correspondents are spared the psychological trauma
of angry and threatening tone, invasion of personal space, or menacing
gestures. Parties may save the conversation narrative for use as a
reference point for future discussions.
c.
Videoconferencing
Currently videoconferencing is expensive and uses digital telephone lines. In
the future, inexpensive videoconferencing may be available using the Internet.
Videoconferencing uses television technology to transmit between sites.
Videoconferencing allows participants to see and hear each other and be seen
and heard with video cameras, microphones, monitors, speakers, and computers.
"The high-tech element of the system, the CODEC (an acronym for
code/decode), is a *34 'black box' that converts sound and video signals from analog to
digital on the sending end, compresses the result, and reverses the process
after transmission to the receiving end." [FN47] Existing videoconferencing
sends audio and video signals over digital telephone lines. [FN48] Videoconferencing technology
typically uses one to three Integrated Services Digital Network (ISDN) [FN49] lines that transmit signals
at speeds of 128 to 384 kbps (kilo-bits per second). Since optimally, the
larger the bandwidth, the more lifelike the transmission, as broadband [FN50] quality increases and costs
decrease, videoconferencing will become readily available.
Videoconferencing is not the panacea that many legal mediators assume that it
will be.
Human interaction has both
verbal and nonverbal elements, and videoconferencing seems precisely configured to confound the
nonverbal ones. It is impossible to make eye contact properly, for instance, in
today's videoconferencing systems, because the camera and the display screen
cannot be in the same spot. This leads to a deadened and form affect in
interactions, eye contact being a nearly ubiquitous subconscious method of
affirming trust. Furthermore, participants aren't able to establish a sense of
position relative to one another and therefore have no clear way to direct
attention, approval, or disapproval. [FN51]
In one study comparing radio, television, and newspaper, researchers discovered
that radio listeners were able to detect deception 73.4 percent of the time,
newspaper readers 64.2 percent, and television viewers 51.8 percent. [FN52] This study does not support
videoconferencing as the superior alternative. Credibility is a key element in
building trust. Therefore, a mediator selecting among computer mediation
communications media must weigh the value of the additional visual cues against
the interfering noise caused by current videoconferencing technology. Whether
it is better to have fewer but more accurate cues, or more cues and a greater
sense of *35
communication without consciousness of possible miscommunication is a decision
for the mediator.
d. Tele-immersion
The future of video conferencing for creating virtual reality is
unlimited. Tele-immersion is a new medium of videoconferencing.
[Tele-immersion] approximates
the illusion that the user is in the same physical space as other people, even
though the other participants might be hundreds or thousands of miles away. It
combines the display interaction techniques of virtual reality with new vision
technologies that transcend the traditional limitations of a camera.The result
is that all participants, however distant, can share and explore a life-size
space. [FN53]
Unfortunately, while a promising tool of the future, tele-immersion is
approximately 100 times more expensive than competing alternatives and requires
bandwidth available only to computing departments in major research
universities.
e. Choosing a
means of communication
Numerous software and hardware options within each of the above forms of
Internet communication occasion correspondingly strategic mediation design
decisions. Initial decisions concern purely technical matters such as
availability of hardware/software, cost, ease of use, and bandwidth. As the
mediator moves beyond establishing the basic ability to communicate at a
distance, the mediator must also plan to achieve higher order needs of the
mediation, i.e., how the particular technology will affect the mediation process. The mediator
must consider whether technology should be used to distance the parties
psychologically, to bring the parties together, to speed the process up, or
slow the process down. Technology is a variable that may manipulate the
mediation. [FN54] Using technology, the
mediator may selectively filter out cues that detract from the mediation [FN55] or add cues incrementally *36 as needed to facilitate
mediation. The mediator may also slow down communications by using asynchronous
technology (e.g., email) or speed up response using synchronous technology
(e.g., instant messaging).
The purpose of mediation, whether physical or virtual, is to
"facilitate communications, promote [] understanding, [and] focus []
the parties on their interests and creative problem solving to enable parties
to reach their own agreement." [FN56] For effective mediation, the mediator must gain the trust and
respect of the parties through impartiality and effective use of mediation
skills. [FN57] The mediator adds to the
process by enriching the context in which the parties communicate. The mediator
is also a sounding board to facilitate communication between the parties. The
mediator may do this by active listening; that is, "hearing" and
restating the parties' unspoken communication. [FN58]Active listening acquires not
just verbal cues; [FN59] a good active listener notices the incongruity between the verbal
message and a party's body language. In online mediation, the mediator must pay
attention to the use of emotions, emoting, delay or lag time in communication not
attributable to technology, and the creative use of grammar, text, or graphic
symbols. Active listening is the explicit importation of the parties' kinesic
and paralinguistic communications into the mediation process. In either physical
presence mediation or virtual mediation, the mediator accomplishes empathic
communication by "attending, paraphrasing, reflecting feelings, and
summarizing." [FN60] Alternatively, the communication may be a neutral perspective on
one party's likelihood of success in future actions. This clearly communicates
how the other party views the dispute. In any formalistic category of
successful mediation, the sine qua non of mediation is the mediator as
communication-facilitator. This enriching context facilitates or improves the
possibilities for the parties to communicate their interests and needs and to
reach a resolution.
*37 While some
mediations absolutely require the physical presence of the parties involved, [FN61] others may be resolved more
effectively online. Determining which is which will require a knowledgeable
mediator. [FN62] Skillful selection and use of
technology may overcome lack of physical presence and, in some cases, the lack
of physical presence may be an asset. [FN63] For example, one study demonstrated that when negotiators are
motivated to maximize joint outcomes, the use of rich media to communicate [FN64] will result in a greater
total sum of party satisfactions than those negotiations using leaner media. [FN65] But, when negotiators are
motivated to maximize their own outcomes, the rich media quickly revealed the conflict.
Therefore, "[c]omputer conferencing technology may be superior for
competitive bargaining tasks because the absence of visual communication
prevents the negative socioemotional angst from adversely impacting task
performance." [FN66] Consequently, parties should include CMC options in an analysis
of factors related to choice of negotiation strategy. [FN67]
2. Legal Context for Online
Mediation
The purpose of this section is not to resolve any of the many complex legal
issues related to mediation in the online context, but rather to identify a few
of the legal issues that will influence online mediation. [FN68] The "location"
of the virtual mediation is legally significant. In the physical world, the
place of the mediation is readily identifiable. Parties who negotiate and
mediate in Florida can reasonably assume that Florida law governs. The parties
may vary some of the default rules and assumptions by contract. But, what if
the mediator is physically in California, one party is in New York, and the
other is in Florida and they are communicating using the Internet in an attempt
to mediate an ecommerce dispute? Which jurisdiction's laws will govern the
mediation? The laws governing the mediation are important. For example, some
jurisdictions have professional licensure standards to qualify as a mediator; [FN69] some jurisdictions provide
for mediator immunity so that the mediator *38 has no [FN70] or limited liability, [FN71] and the ethical obligations of the mediator may vary by
jurisdiction. [FN72] Whether a given act within the mediation process may rise to the
unauthorized practice of law is a question of state law. [FN73] In some jurisdictions, the
mediator's assistance to the parties in reducing the resolution to writing or
the mediator's candid evaluation of a party's chance of success should the case
proceed to litigation may result in a charge of unauthorized practice of law
either against the attorney-mediator who may not be admitted in a jurisdiction
that may assert some interest in the mediation or against a lay-mediator who is
not an attorney in any jurisdiction. [FN74] The legal and evidentiary effects of statements made during the
mediation vary by jurisdiction. [FN75] Many jurisdictions provide confidentiality concerning the use of
statements made during mediation. [FN76] For example, statements made during the course of mediation may
not be used as evidence in later judicial *39 proceedings. [FN77] Statements made to or by the mediator are privileged and
confidential. [FN78] Clearly, the mediation laws of a jurisdiction may affect how the
parties and the mediator proceed in a highly charged dispute. [FN79]
Unlike arbitration, the literature discussing the role of the law governing the
mediation is scarce, but one may look to arbitration by analogy and synthesize
some possible ground rules. [FN80] The law governing the arbitral proceedings is, in almost
all cases, the law of the arbitral situs. The arbitral situs is the place where
the parties agreed that the arbitration would take place. This is often a legal
fiction because, frequently for the convenience of the parties, the actual
physical proceedings may occur in a different jurisdiction or multiple
jurisdictions. [FN81] There is no reason why the mediator and parties could not select
in the agreement to mediate in a jurisdiction whose laws support the mediation
process. By analogy, courts should give the agreement to mediate the same
deference they give an agreement to arbitrate and apply the law of the chosen
jurisdiction. [FN82] These issues are unresolved and may present complex choice of law
questions in the ecommerce and online mediation context. Until these issues are
resolved, and depending on the nature of the dispute, prudent lawyers must
consider the legal advantages of knowing which laws govern the mediation
process. This lack of legal certainty may, in a few instances, hinder the
growth of online mediation.
B. Need for Online Mediation
As individuals and businesses interact on the Internet, commercial disputes are
inevitable. These commercial disputes will be small and large, consumer versus
business, business versus business, national and international, and any other
combination that one can imagine. [FN83] The vast majority of disputes will be resolved informally without
the need for neutral third-party intermediaries; however, a significant portion of online ecommerce
disputes will require neutral third-party intervention. One option is to have
the state judicial apparatus resolve these disputes. Another option is ADR,
which permits the parties, either pre-dispute or post-dispute, *40 to craft their own method for
resolving the dispute. Judicial resolution of ecommerce disputes may be
problematic because of the evolving technological nature of ecommerceand the
jurisdictional and choice of law issues raised by ecommerce transactions. [FN84] Due to the distinctive
characteristics of ecommerce, the better alternative is ADR.
When ADR takes place using computer-mediated communication in the online
environment, it is often referred to as online dispute resolution (ODR). [FN85] ADR is well established in
the area of brick and mortar commerce, and most, if not all, of the same laws
and principles that apply to ADR in the brick and mortar regime will apply when
ADR resolves ecommerce disputes. The legal issues may be less important than
the technological and social challenges found when engaging in ADR in a computer-mediated
ODR mediation environment. ODR is the computer mediated communication analogue
of ADR. ODR is not only a digital communication channel; ODR has the additional
element of information processing tools. ODR technology may be so influential
at the mediation as to almost become the "fourth party" to the
mediation. [FN86] ODR ranges from mediation,
which aims at encouraging the parties to reach an amicable voluntary resolution of their
disagreement, to binding arbitration that imposes on the parties a legally
enforceable arbitral award through the reasoned decision of an arbitrator, who
applies the private law created by the parties to the dispute. [FN87] Pure ADR may not be an exact
fit in cyberspace. ADR is vested with social values and concerns that may not
be retained in an electronic medium, especially in ecommerce that involves
individuals or institutions from different real world cultures. [FN88]
The Organization for Economic Cooperation and Development (OECD) has noted the
need for efficacious ADR:
The online environment is
playing an important role in the global market. Both consumers and business
will derive significant benefit from online interactions. With these benefits
and the expected increase of business-to- consumer (B to C) national and
international interactions, come new challenges. Of particular significance are
the challenges of identifying the competent forum and applicable law, and of
obtaining redress across borders. Given that traditional court-based dispute
settlement mechanisms may not provide effective redress for *41 electronic commerce
interactions, there is a need to examine alternative dispute resolution (ADR)
mechanismsto fairly and effectively settle disputes. [FN89]
Globally, ADR is the preferred method of resolving disputes between
transnational corporations. [FN90] Many governments are encouraging business to adopt ADR as the
preferred method of resolving disputes. [FN91] In the United States, ADR is the politically and judicially
favored dispute resolution mechanism. [FN92] The U.S. government supports "the development of
adequate, efficient, and effective alternate dispute resolution mechanisms for
global commercial transactions." [FN93] The current preference for ADR by the courts and the executive
and legislative branches of government clearly makes ADR the favored dispute
resolution mechanism, even over the traditional judicial fora in the United
States. The proposed European Union Ecommerce Directive requires member states
to establish alternative dispute resolution procedures for ecommerce contracts
and to include provisions for ODR. [FN94] Even absent government encouragement, many traditional businesses
have learned that existing institutions such as contract law (private law
making) and its corollary alternative non-judicial dispute resolution (private
adjudication or ADR) may be used in new and creative ways. Both traditional and
ebusinesses synergistically couple the efficiency and flexibility of private
law and private adjudication with the technological and communicative nature of
cyberspace, achieving, in many instances, an economically optimal result.
Ecommerce may require more formal channels for dispute resolution. [FN95] Ecommerce permits businesses
to drastically reduce overhead costs, thus yielding *42 much higher profits. [FN96] Labor is no longer needed to
perform the time-consuming tasks of taking orders and filling out shipping manifests. [FN97] Instead, the consumer
completes simple online forms, or customers can program their inventory systems
to automatically reorder specific items when supplies reach a critical level.
In such a case, human interaction is minimal. [FN98]
The incorporation of telecommunications and automation in the minutiae of daily
life has resulted in disintermediation. [FN99] Merchants and consumers no longer have informal relationships.
The ecommerce process is automated, faceless, disembodied, and depersonalized.
The lack of informal relationships between "customers" and the
individuals who processed orders also removed the intermediaries from whom
customers could seek assistance when the process failed. This may lead to the
need to automate dispute resolution and rely on more formal dispute resolution
processes. Reducing human interaction does not necessarily result in greater
consumer satisfaction. In one online consumer satisfaction survey performed in
October 1999, one-fifth of online shoppers had experienced transactional
problems in the previous twelve months. Federal Trade Commission Internet
complaints rose by 10,627. [FN100] Of the total 18,622 complaints, 10,688 involved Internet auction
transactions. [FN101] Due to the increase in complaints arising out of business done on
the Internet, ODR is rapidly becoming a sought after service. Ebusinesses and
consumers on the Internet are often willing to mediate their disputes in an
online forum. [FN102]
C. Advantages of Online
Mediation
Online mediation presents many advantages. In the ecommerce context it may be
the only financially feasible option for low dollar value disputes and for
individuals who cannot afford to travel long distances (at great expense) to
resolve a dispute. An asynchronous ODR process can occur twenty-four hours a
day, seven days a week, at the parties' and mediator's convenience. The
parties, their attorneys or advocates, and the mediator do not have to travel
to a distant location. There is no expense to provide a neutral facility at
which to conduct the mediation. Since the parties are located at their usual
place of business, documents and other materials are readily available. The
mediator can dedicate discrete time to each communicative transaction, thus
reducing mediator costs. Party time and mediator time will be active productive
time rather than merely sitting at a conference room table waiting for the next
stage in the mediation process. "Through asynchrony," the Internet
permits "participants and mediators to be at their thoughtful best,
rather than their *43 immediate often worst." [FN103] Asynchronous communication does not require complex feats of
scheduling so that the parties and the mediator are together at the same time
on the same date at the same physical location. Finally, the mediator may
privately caucus with either or both parties without artificially interfering
with the flow of the mediation. These characteristics save both time and
expense while promoting efficiency in the mediation.
D. Misconceptions and Problems
The major challenge to online mediation is to overcome resistance based on
inexperience. This section will discuss two of the major objections to online
mediation. [FN104] First, there is an unexamined assumption that physical presence,
face-to-face dispute resolution, is superior to dispute resolution mediated by
other communication channels. Secondly, there is a perception that there is no
paradigm to guide mediators in the uncharted realm of cyberspace. Neither
perception is necessarily true.
1. There Is No There, There:
Physical Presence versus Virtual Presence
As one commentator observed, "the great paradox of online mediation is
that it imposes an electronic distance on the parties, while mediation is
usually an oral form of dispute resolution designed to involve participants in
direct interpersonal contact." [FN105] This so called paradox is really not a paradox at all. While it
is true that mediation is usually conducted in a face- to-face setting, the
distance is not imposed on the parties as a result of being on the Internet.
Rather, the distance is imposed by the parties' physical locations. In this
sense, online mediation imposes or offers an electronic nearness for the
parties. It is this proximity that is the starting point for facilitating
communication online.
Traditional mediation allows the parties to observe one another as they react
to the mediation process. Depending on the technology used, online mediation
may limit opportunities to observe the opposing party's spontaneous body
language or verbal responses throughout the mediation process. Even if spontaneous
body language or verbal responses are perceptible, the communicative media
alters how they are understood. Under some circumstances, the lack of body
language may be an advantage. Due to the lag time in online mediation, the
parties will have more opportunity to think about their disputes and to respond
in a manner that will promote resolution to the dispute or to dwell on
perceived slights and become agitated.
Another misconception is that email will be the main (sole) technology used in
online mediation. Although email is the predominant form of communication on
the Internet, it is not the sole form of communication. There are many other *44 technologies that can be used
for online mediation. [FN106] As online mediation evolves, mediator training should evolve to
cover the technologies available for mediation. While the actual forum (virtual
versus physical) is different, the basic principles of mediation still apply
and may be enhanced as new technologies become available.
Based on their experiences with unmoderated lists, some mediators worry that
the virtual presence mediation will degenerate into an online flame war absent the social sanctions that
moderate human behavior in the physical presence of other individuals. This is
potentially a positive characteristic of Computer- Mediated Communication
(CMC); CMC promotes equality in the communicative marketplace. "The
lack of nonverbal cues about physical appearance, authority, status, and
turn-taking allows users to participate more equally and with more extreme
affect on CMC systems than in many face-to-face interactions." [FN107] This concern of runaway
socioemotive content is based on unmoderated list serves. The mediator is the
moderator for virtual or physical presence mediation and is responsible for the
decorum and tranquility of the mediation.
Finally, there is a misconception that physical presence mediation is neutral
while virtual mediation favors those with computer skills. Face-to-face
mediation tends to advantage individuals who are physically attractive,
articulate, well-educated, or members of a dominate ethnic, racial or gender
group. Both forms of mediation advantage those with different skill sets. The
reality is that "embedded in every tool is an ideological bias, a
predisposition to construct the world as one thing rather than another, to
value one thing over another, to amplify one sense or skill or attitude more
loudly than another." [FN108] As one commentator observed,
The routine use of a medium by
someone who knows how to use it typically passes unquestioned as unproblematic
and "neutral"[;] this is hardly surprising since media evolve as a
means of accomplishing purposes in which they are usually intended
to be incidental. And the more frequently and fluently a medium is used, the
more "transparent" or "invisible" to its users it
tends to become. For most routine purposes, awareness of a medium may hamper
its effectiveness as a means to an end. Indeed, it is typically when the medium
acquires transparency that its potential to fulfill its primary function is
greatest. [FN109]
Mediators assume that because they use the medium of physical presence
mediation often and the vast majority of their life experience is based on
physical presence communication, it is neutral and transparent. Rather, it too
advantages some participants and subordinates others. Mediators must realize
that
[a]ny medium facilitates,
emphasizes, intensifies, amplifies, enhances or extends certain kinds of use or
experience whilst inhibiting, restricting or reducing other kinds. Of course,
[the] use of any medium for a particular task may have advantages over
"the alternatives" (such as "saving" time or labour),
but use *45 always
involves a "cost." There are losses as well as gains. A medium
closes some doors as well as opening others, excludes as well as includes, distorts
as well as clarifies, conceals as well as reveals, denies as well as affirms,
destroys as well as creates. The selectivity of media tends to suggest that
some aspects of experience are important or relevant and that others are
unimportant or irrelevant. Particular realities are thus made more or less accessible-more or
less "real"-by different processes of [communication]. [FN110]
A mediator's purpose is to serve as a neutral third party who facilitates communication
between the disputants. Whether the medium is physical presence mediation or
virtual mediation, it is incumbent upon the mediator to ensure a level playing
field [FN111] if the mediation is to be
successful. [FN112] In the online context, this will require the mediator to actively
consider the role of communications in the mediation process.
2. Cross-Cultural Paradigm of
Online Mediation
Mediators looking for an analogous communications model to guide online
mediation may usefully consider cross-cultural mediation. [FN113] Online mediation differs
from physical-presence mediation in that it is, in essence, almost always a
form of cross-cultural [FN114] mediation. [FN115] Culture may embrace disparate and wide-ranging elements or
culture may be defined solely as language or by a method of communication. [FN116] "Language is
culture.Language structures meaning, determines *46 perception, and transmits
culture. It communicates thought and subjective cultural experiences at deep
and subtle levels." [FN117] "[E]ach new technology not only extend [s] the reach of
human communication, it also alter[s] the ways in which humans relate[] to
information and to each other." [FN118] The existence of an Internet culture may be found in its sui generis method of
communication that has fashioned a new worldview. Correspondingly, in the
course of online mediation, the mediator may become a cultural interpreter to
bridge the communications "gap" in online communications. [FN119] On the Internet, the
mediator may no longer retire solely to the default rules that social
conventions and verbal-language supply. In particular, those conventional usages
of body language, verbal-language, and shared assumptions based on physical
impressions may be lacking in some forms of online mediation. [FN120]
As an online cultural interpreter, the mediator must first teach the technology
to the parties. This is analogous to finding a common language in a
cross-cultural negotiation. Once the parties, with the help of the mediator,
have selected the technology for the mediation, the mediator must spend time
helping the parties to develop paralinguistic cues to replace those that are
lacking in virtual, as opposed to face-to-face, communication. This is really
no different from mediating face to face between individuals from different
cultures. The mediator in either context educates both parties in the expected
social and communicative norms. In cross-cultural mediation, parties may
misinterpret. To avoid misinterpretation, parties must learn to understand the
sender's intended signs. The sender can learn, for example, that a common
greeting is considered an insult in another culture and can refrain from using it. The receiver may also
learn that the "deadly insult" was intended as a polite gesture.
In physical presence mediation, the mediator educates the parties concerning cultural
differences in order to eliminate "noise." In online mediation,
the mediator tries to minimize "noise" caused by the technology or
the parties.
Another problematic "cultural area" in online mediation is how the
parties and the mediator process time. [FN121] "[T]here appears to be a continuum of time orientation, with
monochronic time on one end and polychronic time on the other." [FN122] Monochronic individuals or
cultures tend to prefer to do one thing at a time and have a high need to
complete a task before moving to another task or topic. They tend to think in a
linear manner and process information in a sequential orderly *47 manner. Polychronic individuals
or cultures tend to attempt to accomplish several things simultaneously.
Monochronic or polychronic individuals do well in their respective cultures but
may experience difficulties in communicating with individuals of the other
orientation. [FN123] Online mediation permits the mediator to create an environment
that mediates between these two orientations. For example, email allows for
multiple topics to be discussed simultaneously; yet, threading the topics
focuses each thread on only one issue.
Another assumption concerns the extent to which cultures expect individuals to
know about situations. "A culture in which information about a
procedure is rarely communicated is a high context culture. Members are
expected to know how to perform in various situations, but the rules of the
cultural performance remain implicit. The context is supposed to be the cue for
behavior." [FN124] "In a low context culture, on the other hand, information
is abundant, procedures are explicitly explained, and expectations are
discussed frequently." [FN125] Communication often breaks down when an individual from a high
context culture attempts to communicate with an individual from a low context
culture. Communications break down because the underlying assumptions or the
"context" of the communication are rarely understood by both
parties, much less discussed or explicitly stated. The high context individual
assumes that the low context individual understands and would, in fact, perhaps
be insulted if she filled in the contextual gaps, while the low context
individual waits in frustration for the additional information necessary to
understand the task. Because the ODR takes place in a uniquely communicative
medium, the mediator may use technology to insure that the parties are sharing
common assumptions and bridge the high/low context cultural issues without
unnecessarily offending either party.
Computer-mediated communication is best characterized as a specific form of
cross-cultural communication, even for individuals sharing a common culture.
The role of the mediator remains the same but the selection of techniques may
change. Because mediators have engaged in cross-cultural mediation since the
earliest days of mediation, mediators already have at least rudimentary skills
to apply to online mediation. Mediators must apply this knowledge to the
technological tools provided by the Internet.
II. COMMUNICATION
AND MEDIATION
Ideally, the choice between dispute resolution alternatives should be informed.
Disputants and their lawyers [FN126] should possess sufficient information to examine *48 critically the relationship
between the processes that exist in face-to-face mediation and those processes
that exist in online mediation. This section will discuss the basic
communication paradigm, the theoretical perspectives on Computer-Mediated
Communication (CMC), [FN127] the theoretical perspectives on legal mediation, and whether a
better understanding of CMC theory would assist legal mediators.
A. Communication Defined
"Computer-mediated communication is simply the application of computing
machinery to the process of communication." [FN128] In order to resolve
(mediate) disputes in either physical presence or virtual presence,
communication must take place. Of the essential elements of communication, the
most significant difference between virtual and physical presence dispute
resolution options is the channel. To determine the viability of online mediation, one must
consider the medium used to transmit the message, i.e. the channel of
communication.
B. Computer-Mediated
Communication
While social science commentators agree that the singular difference between
computer-mediated communication and face-to-face communication is that non-
verbal cues are reduced or eliminated in CMC, there is no agreement on the
effect that this has on the communicative process. [FN129] Two major theoretical
explorations *49 of
cue loss in CMC have focused on the social information processing approach and
the "cues-filtered-out" approach, and on how individuals process
CMC information (social information process). [FN130] Social influence theory
posits that social influences affect individual perception of media richness.
In contrast, media richness theory posits that "media richness" is
an immutable characteristic of each form of communication media. Traditional
legal scholarship of online mediation tends to focus doctrinally on the lack of
nonverbal cues to the detriment of alternative theoretical perspectives. This
emphasis discourages legal commentators from identifying tools that can
reintegrate cues into the online mediation process and discourages commentators
from attempting to change social attitudes toward CMC. This section presents
the theoretical perspectives that inform current understanding of CMC as a
prelude to the authors' identification of tools for reintegration of cues in
CMC and presentation of reasons for use of CMC.
1. Cues-Filtered-Out Theory
Early CMC research utilized Social Presence Theory [FN131] and the Media Richness
Theory [FN132] to develop the
cues-filtered-out approach." [FN133] Media Richness Theory posits that communicative technologies
possess unique capabilities for transmission of the complete context of the
communicative act. Under this theory, technologies import various levels of
ambiguity. "Ambiguity is a function of a medium's richness, that is the
capability of (a) facilitating feedback, (b) communicating multiple cues, (c)
presenting individually tailored messages, (d) and using natural language to
convey subtleties." [FN134] Many forms of CMC are extremely limited in their ability to
transmit cues. "The rank order of media in terms of richness is
face-to-face, telephone, [FN135] electronic mail, personal written text (letters, memos), formal
written text (documents, bulletins), and formal numeric text (computer
output)." [FN136] The richer the media, the greater the capability to reduce
ambiguity. This characterization of communication media would seem to argue for
employment of the most cue-rich medium. However, richer media and the increase
in completeness may cost more than less rich media. Thus, if the task involves
higher levels of ambiguity, leaner media will accomplish the same task more
efficiently. [FN137]
*50 Social Presence Theory
hypothesizes that the psychological state of being "present" is a
function of the quantity and quality of the cues one receives with the
communication. [FN138] The social information processing theorists note that many of the
prior studies supporting the cues-filtered-out theories were one-shot studies
of extremely short duration in which the parties had neither the time nor
motivation to create a positive impression.
2. Social Information
Processing Theory
The social information processing theorists contend that the distinguishing
characteristic between physical presence and virtual presence communication is
the rate of impression formation, rather than question whether impression
formation is possible. Further research and field experiments led some
researchers to question the cues-filtered-out approach (media richness theory).
[FN139] Subsequent research
suggested "that bandwidth was an insufficient predictor of CMC effects
on the nature of social interaction." [FN140] Consequently, given sufficient time, frequency of communication,
and motivation, individuals engaged in virtual presence communication will
develop impressions that are of equal accuracy as those engaged in physical
presence communication. [FN141] "The more often an individual spends time communicating
with others on-line, the more easily s/he can adapt to the lack of nonverbal
and contextual cues and the more satisfied s/he becomes with the relationship." [FN142]
3. Social Influence and
Communication Media Theory
The Social Influence model posits that an individual's media perception and use
are influenced by others and the objective features of the communication's
technology. [FN143] Individuals view different objective features of a given medium
of communication differently. Selecting media for a specific mediation task is
not an objective choice as pure Media Richness theories suggest; the sender
must consider the receiver and his or her social context. Accordingly, the
Social Influence Model proposes thatmedia selection and use is subject to
social influence, subjectively rational, not motivated by efficiency concerns,
and "designed to preserve or create ambiguity to achieve strategic
goals." [FN144]
4. CMC and Online Mediation
CMC is merely the channel through which communication takes place. The seminal
question in online mediation is whether CMC as a channel is capable of carrying
the data without unduly interfering with the receiver's ability to convert the
data to understanding and knowledge so as to permit mediation. A related
question *51 is the
effect of CMC on the sender's and receiver's respective physical and social
filters that organize how the individual selects and uses data.
The most restrictive of the theories of CMC are the cues-filtered-out
approaches. If online mediation is feasible using the most restrictive CMC
paradigm, then online mediation is also possible under the less restrictive
paradigms. Under the cues-filtered-out approach, the mediator must consider the
amount of ambiguity inherent in the medium supporting the mediation, and as the
level of ambiguity becomes more crucial, the mediator should evaluate the costs
of richer media with the benefits of reducing ambiguity. The social information
processing theory teaches that online mediation may under some circumstances
take longer so that the parties can form impressions of their counterparts. "Most
studies of interpersonal relationships within computer-mediated environments
have [noted that problems] with the lack of nonverbal and contextual cuescan be
apparently overcome as participants in on-line relationships increase the time
they spend using the mediumand the more familiar they become with it." [FN145] These approaches do not
preclude virtual presence mediation. Rather, these approaches teach that
e-mediators will have to work harder to reintegrate cues into the online
mediation and to reduce unnecessary ambiguity.
The social influence theory teaches that the mediator will have to work to
select media on an ad hoc basis that is acceptable to the parties and work to
help the parties accept the technology. But over time, as individuals become more CMC savvy, this will
be less of an issue until the communications technology becomes transparent
through its ubiquitous nature. Although each of these theories envisions a
slightly different role for the mediator, all of these theories support CMC as
a possible tool for mediation.
C. Mediation
Legal literature reflects a recognition of communicative value of nonverbal
signals in lawyer-client interviewing and counseling, [FN146] negotiation, [FN147] mediation [FN148] and trial practice. [FN149] Eye contact, facial
expressions, or trunk lean may provide significant information regarding a
mediating party's preferences. This section explores the effect on CMC of the
availability of nonverbal cues or their substitutes. [FN150]
*52 1. Spatial Dynamics
Spatial dynamics concerns the effects of environmental conditions surrounding
each party during the mediation. [FN151] These environmental conditions include the party proximity to
other parties and the mediator, party physical reactions (body language) toward
other parties and the mediator, and the party reactions to the time or duration
of the mediation. Proxemics, kinesics, and chronomics profoundly affect
attitudes of the parties and can affect the ultimate outcome of the mediation. [FN152]
a. Proxemics
Proxemics refersto the parties' physical orientation to one another throughout
the mediation process. [FN153] This physical orientation is one factor that may affect the
attitudes of the parties throughout the mediation. [FN154] For example, parties sitting
across a table from one another may unconsciously promote adversarialness. [FN155] Separating the disputants on
opposite sides of the table may create a psychological barrier to
communication, recognition, or agreement. Whereas seating parties next to one
another on the same side of the table creates a less oppositional tone. [FN156] Elimination of the physical
barrier may enhance the impression of a shared common place and
psychologically, a shared common predicament.
The position of the mediator relative to the parties may trigger varied
interpretation. Consider the following three scenarios. In scenario one, the
mediator sits across the table from both disputants who are sitting next to one
another. This may promote the perception that the parties are working toward a
common goal. It also suggests that the equidistant mediator is truly neutral.
Proxemically, this scenario may reduce defensive communication.
In scenario two, the mediator positions himself between the parties. While the
mediator's neutrality appears to remain intact, the physical arrangement may
imply that the dispute is one that the parties cannot resolve without mediator interference.
This may require more effort by the mediator to achieve party empowerment.
Finally, consider scenario three, in which the mediator sits on the same side
of the table as one of the disputants. This scenario may create an adversarial
environment and an impression of mediator bias. This scenario most damages the
neutral image of the mediator and can make the lone party feel alienated from
the process.
Conceptually, proxemics does not appear relevant to text-based communication.
It does, however, relate to videoconferencing and graphical avatar
conferencing. In *53 one study involving highly collaborative tasks using videoconferencing,
subjects did not prefer the "collaborative" side-to- side
position; rather they preferred the more "competitive"
face-to-face position when videoconferencing. [FN157] While subjects preferred to be
in person, face-to-face, for collaborative tasks, subjects were generally
satisfied with videoconferencing. This study provides support for the media
richness theory and for those attorney-mediators who contend that online
mediation is only realistic when videoconferencing becomes viable.
When individuals were graphically represented in cyberspace by an avatar,
proxemics was important. An avatar is a graphical representation of the user
that interacts with other graphical representations, including those of other
users. [FN158] One study found that even
graphical representations have "personal distance" space among other avatars. [FN159] The further avatars were
apart, measured in pixels, the more likely an individual would perceive the
conversation as appropriate. [FN160] The closer avatars appeared on screen, the greater the social
attraction between the parties. [FN161] In sum, whether measured in feet or pixels, distance matters.
Research suggests that designers of online mediation software products, or
mediators who use off- the-shelf products to create a graphical virtual
environment for the mediation, need to consider proxemics in their design.
b. Kinesics
"Kinesics" concerns the communicative aspects of physical
reactions of parties toward one another. [FN162] Body language is absent in the text- based online mediation
process and will probably be difficult to re-create. It is present in
videoconferencing, but not to the same extent as in physical presence
mediation. Without a face-to-face interaction between the parties, parties are
more likely to express any response to comments made textually, whereas if the
parties were in the same room together, the reaction would be more likely to
involve body language rather than verbal expression. Textual expression may be
more accurate and authentic than a "read" of ambiguous and
culturally determined body language.
Time is an important consideration in physical presence mediation. The time
each party has to speak and the duration of the mediation may have a profound
impact on *54 the
attitudes of the parties. If both parties do not receive equal time to state
their position, the one receiving less time may feel slighted or even feel that
the mediator is biased. This in turn can lead to increased hostility and
lowered cooperation. Since text-based online communication permits the parties
to participate to the extent they desire, greater or lesser participation
should raise fewer inherent equity and bias issues. In addition, online
mediating parties may avoid the time pressures to concede experienced by
negotiators in face-to-face negotiations with pre-set itineraries for returning
home. [FN163]
2. Paralinguistics
Paralinguistics is the study of the influence of verbal pitch, rate, volume,
and mediating tone of the parties. [FN164] While the Internet is largely text based, the sender has several
text options for sending paralinguistic cues. The best-known paralinguistic
devices on the web are emoticons. Emoticons are ASCII text characters used to
express emotion, such as :-) for a smile or :-( for a frown. Some programs
allow for graphic representations of emotion, for example
<<non-displayable>> for a smile or << non-displayable>>
for a frown. For example, Cindy saying, "Robin, you're awful." is
ambiguous and is quite different from Cindy saying, "Robin, you're
awful :-)." Since individuals cannot modulate the volume of their voice in
text based discussions, ALL CAPS is known as shouting. Another option is
"emoting." Emoting represents an action and is usually expressed
in the third person, for example, messages sent by Cindy such as "Cindy
crying, 'Robin, you're awful"' or "Cindy saying flirtatiously,
'Robin, you're awful."' These cues may be used either in synchronous or
asynchronous communication. Modern email programs give individuals the option
of using different fonts, font sizes, and colors. All of which may be used to
communicate paralinguistically and to enrich lean text- based communication.
3. Spatial Dynamics,
Paralinguistics and Media
Not all media transmit all forms of spatial dynamics. For example, generally
proxemics information is only transmitted in face-to-face communication.
Kinesic information may be transmitted either face-to-face or via
videoconferencing. Paralinguistic information may be transmitted face-to-face,
by videoconferencing, or via audio-communication. Finally, linguistic
information may be transmitted face-to-face, by video conferencing, by audio-
communication, or via computer text messages. By selecting the media to be used
in the mediation, the mediator may edit cues or other information that may affect the mediation. For
example, even assuming mediation is appropriate, for two people who cannot
tolerate each other enough to mediate in the same room, the tele-distancing of
the parties may facilitate their ability to communicate and build bridges so
that eventually face-to-face mediation may be successful.
*55 4. Mediation Continuum
Mediators often characterize their dominant approach to mediation as either
facilitative or evaluative. This section will evaluate how mediators whose
approaches to mediation fall at different points along the continuum may experience
online mediation.
a. Facilitation
and Evaluation, Broad and Narrow
Professor Leonard Riskin has proposed a four-element scheme for identifying
attitudes or orientations mediators typically adopt to assist parties in the
mediation encounter. Two elements, facilitation and evaluation, reflect
different levels of responsibility mediators assume for assisting in problem
solving. "Facilitation" assists parties to achieve
self-determination and self- discovery by encouraging "parties to
develop their own understandings and outcomes,educat[ing] the parties, or
'empower[ing]' them by helping them develop a sense of their own abilit[ies] to
deal with problems and choices in life." [FN165] To carry out the strategy,
facilitators do not use their own "assessments, predictions, or proposals." [FN166] They ask questions, clarify,
and remain non-judgmental.
"Evaluation" strategy, on the other hand, calls for the mediator
to "give [ ] advice, make [ ] assessments, state [ ] opinions-including
opinions on the likely court outcome, propose [ ] a fair or workable resolution
to an issue or the dispute, or press the parties to accept a particular
resolution." [FN167]
Two additional Riskin scheme elements, narrow and broad, reflect the scope or
breadth of the definition of the problem. A narrowly defined issue concerns the
immediate matter before the parties such as a lawsuit or a single transaction.
Mediator strategy attempts to resolve the party positions regarding this issue.
A broadly defined matter encompasses more than the immediate matter and may
include the parties' interests or relationships. Mediator strategy "directs
parties towardoutcome[s] that respond [ ] to such interests." [FN168] Professor Riskin has
graphically depicted the facilitation and evaluative approaches using the
x-axis as the decision between the two. The y-axis divides the narrow and broad
approaches. The matrix is known as the Riskin Grid.
*56 The sections
below discuss computer-mediated communications within each Riskin Grid quadrant.
TABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
"A principal strategy of the evaluative-narrow approach is to help the
parties understand the strengths and weaknesses of their positions and the
likely outcome of litigation or whatever process they will use if they do not
reach a resolution in the mediation process." [FN169] This approach requires a
substantial understanding of the conflict and of the possible remedies by the
mediator and requires preparation to actively intervene in the mediation
process. [FN170] Preparation may include
examination of documents and evidence "relevant" to the dispute. [FN171] This form of mediation
begins with party presentations followed by individual caucuses. [FN172] During caucus, the mediator
will "gather additional information and deploy [any number of]
evaluative techniques." [FN173]
Evaluative techniques typical of the evaluative-narrow approach are
(1) "[Assessing] the
strengths and weaknesses of each side's case;" [FN174]
(2) "[Predicting] the
outcomes of court or other processes;" [FN175]
(3) "[Proposing] position
based compromise agreements;" [FN176]
(4) "[Urging or pushing]
the parties to settle or accept a particular settlement proposal or
range." [FN177]
Aside from the additional time that may be required, this mediation approach
may take place online. Chat rooms and email allow a mediator to communicate with both parties
together or individually. The only hurdle here is the mediator's examination *57 of relevant materials. In such a
case, there are many available options that can overcome this potential
problem. Today's technology provides methods of packaging documentation and
sending it via email to a recipient who can view it without compromising the integrity
of the document. For example, pleadings and memoranda can be scanned and saved
in Portable Document Format and transmitted online. This format is universally
utilized and the software required to view the documentation is freely
available. The costs of document scanning may be minor in comparison to the
costs associated with party travel and document shipping to a physical
mediation site.
c.
Facilitative-Narrow Approach
The facilitative-narrow mediator is similar to that of the evaluative- narrow
mediator in that the mediator attempts to "educate the parties on the
strengths and weaknesses of their claims and the likely consequences of failing
to settle." [FN178] Rarely do facilitative-narrow mediators examine any documents or
give opinions as to the outcome of the case. [FN179] The facilitative-narrow
mediator will place the "burden of decision making" on the parties
by utilizing facilitative techniques to inform the parties of their options. [FN180] These techniques are
generally questions that assist parties in making their own decisions. [FN181] Among these techniques are
(1) "[Asking]
questions;" [FN182]
(2) "[Helping] the
parties develop their own narrow proposals;" [FN183]
(3) "[Helping] the
parties exchange proposals." [FN184]
(4) "[Helping] the
parties evaluate proposals." [FN185]
This form of mediation can easily be used in the online context for two
reasons. First, because there is no need for the mediator to examine documents,
there is no need to prepare documents for the online mediation. Second, because
there is a focus on the immediate issues, this approach is very efficient. This
form of mediation may be the most time efficient online mediation.
d. Evaluative-Broad
Approach
Describing the strategies and techniques of the evaluative-broad mediator [FN186] is difficult because of the
broad scope of the mediator's approach and the varying *58 degrees of evaluation that each
mediator may provide. [FN187] The evaluative-broad mediator will learn as much about the
parties "interests" and their situation as possible and use that
information to formulate options. [FN188] The mediator will then "direct the parties towards an
outcome that responds to [the mediator's understanding of their]
interests." [FN189] To this end, a mediator may utilize the following techniques:
(1) "Educate herself
about the underlying interests;" [FN190]
(2) "Predict impact
(on interests) of not settling;" [FN191]
(3) "Develop and offer
(interest-based) proposals;" [FN192] and,
(4) "Urge the parties
to accept the mediator's or another's proposal." [FN193]
Due to the varying nature of the evaluative-broad mediation, it is difficult to
predict what effects it may have on online mediation. While it may take
additional time, for parties willing to accept ideas from third parties, the
combination of the mediator's inquiries into the interests of the parties and
the offer of settlement options will, at the least, assure that the parties
have a great range of possible solutions.
e.
Facilitative-Broad Approach
"The facilitative-broad mediator's principal strategy is to help the
participants define the subject matter of the mediation in terms of underlying
interests and to help the participants develop and choose their own solutions
that respond to such interests." [FN194] Facilitative-broad mediators may also "help participants
find opportunities to educate or change themselves, their institutions, or
their communities." [FN195] Facilitative-broad mediation is similar to the transformative
theory. [FN196] Facilitative- broad
mediation may employ some of the following:
(1) "Help parties
understand underlying interests;" [FN197]
(2) "Help parties
develop and propose broad, interest-based options for settlement;" [FN198] and,
(3) "Help parties
evaluate proposals." [FN199]
These processes, too, may occur online.
Online mediation is feasible regardless of where the mediator falls in the
Riskin Grid.
*59 5. Transformative Mediation
The transformative mediation process attempts to "strengthen [one's]
capacity to analyze situations and make effective decisions" while "[strengthening]
[one's] capacity to see and consider the perspectives of others." [FN200] Mediators attempt to empower
the parties to make clear decisions for themselves while considering the effect
on all involved. [FN201] Transformative mediation is not "settlement driven."
Rather, it is based on supporting the parties through their own decision-making
process. [FN202] This form of mediation has a
role in online mediation. Consider the following application of the ten
"hallmarks" of the transformative mediation approach in the online
context.
1. The Opening Statement
The purpose of the opening
statement is two-fold. [FN203] First, it helps the parties to "clarify their own goals, resources,
options, and preferences and make clear decisions for themselves and about
their situation." [FN204] Second, it allows the parties to "consider and better
understand the perspective of the other party, if they decide to do so. [FN205] This opening statement will
not suffer from CMC. Moreover, transformative mediation may be enhanced by the
online experience, as parties may direct themselves to the transcript of the
mediation for greater self- awareness and recognition of the other's
perspective.
2. Settlement Is Up To the
Parties
The mediator does not decide.
This is critical to the transformative process in that the mediator must reject
all personal feelings of "responsibility" in generating an outcome
to the mediation. [FN206] This is particularly important for the mediator to recognize, as
it can actually hinder the possibility of the parties learning and compromising
on their own. No aspect of this hallmark prevents an online mediator from
adjusting her role in this party-centered direction.
3. The Parties Know Best
The mediator should not
demonstrate approval or disapproval of the parties' views and decisions. [FN207] With online mediations
occurring via chat rooms or email, parties lack the ability to observe other
parties and the mediator's response to what was said during the mediation. With
this communications
cue missing, the parties will not be able to observe the mediator's response to
their position or idea. Therefore, a mediator can essentially keep his or her
reaction to himself or herself and avoid inadvertently steering any of the
parties or altering the power dynamics between the parties.
*60 4. The Parties Have What It Takes
In transformative practice,
the mediator assumes the parties' underlying competence and decency. CMC
strengthens the mediator's positive assumptions about the parties. CMC may
lessen or eliminate stereotypes, dominance, subjugation, and dismissiveness.
CMC permits the parties to control their presentation. Irrelevant physical
characteristics, mannerisms, gender, race, ethnic origin, age, education,
accent, sexual orientation, or social status are not necessarily disclosed to
affect the mediator's perception of the competence and decency of the parties.
On the other hand, CMC does not allow characteristics that may be sympathetic
or create common ground to become part of the mediation without the parties or
mediator being physically present. It is important to consider technology
situations that could give rise to negative judgments about the parties. Two
that could be a problem for a computer savvy mediator are (1) frequent
typographical mistakes; and, (2) computer errors leading to lost files or
simply being unable to utilize the computer system properly. It is important
for the mediator to take the ability of the parties to use a computer system into account when
mediating, as it will probably require additional patience on the part of the
mediator to avoid frustration. To this end, the mediator can focus on the
linguistic interaction between the parties instead of worrying about the
mediator's kinesic reaction to the parties. This allows the mediator to be more
optimistic about the parties' competence and motives. Again, the lack of
face-to-face interaction avoids inadvertently discouraging the parties through
body language or facial expressions and keeps the mediation on an optimistic
path.
5. There Are Facts in the
Feelings
"In transformative
practice, third parties view the expression of emotions- anger, hurt,
frustration, and so on-as an integral part of the conflict process." [FN208] These sources of recognition
in Transformative Mediation may suffer from the absence of face-to-face
interaction. CMC can, however, convey to some extent the parties' emotions as
discussed in section (c)(2) above. Further, research suggests the possibility
that individuals will be more open in a CM environment. People may be more
likely to say what they mean when not confronting their adversary face-to-face.
This will provide for the expression of more genuine feelings.
6. Clarity Emerges from
Confusion
"Interveners who
understand the transformative framework expect that the disputants will
frequently be unclear and uncertain about the issues underlying their conflict,
what they want from each other and what would be the 'right' choices for
them." [FN209] As previously mentioned, the lack of face-to-face interaction may
facilitate the parties' honesty, participation, and clarity of thought.
7. The Action Is in the Here
and Now
"In the transformative
approach to practice, third parties remain closely focused on the here and now,
on the stream of individual comments and moves that parties make throughout the
session." [FN210] The behavior "in the room" allows the mediator to
exploit opportunities for empowerment and recognition by *61 slowing down the discussion and
working with the parties on clarification. [FN211] This too may differ in virtual presence mediation. Throughout the
physical mediation process, the mediator usually focuses on two aspects of the
parties' behavior. First, the mediator pays close attention to the parties' verbal
language as they interact with one another. Second, the mediator observes body
language, also paying close attention to how the parties physically interact. [FN212] In online mediation physical
responses are lost; however, the lack of body language in online mediation may
be compensated for in the choice of language, the use of emoticons, emoting, [FN213] or changes in response time
in the virtual mediation process. The cues will range from the obvious to the
subtle and online
mediators should be trained to detect the "tone" of the parties. A
good starting point is the substantial body of materials systematically
studying discourse in the computer mediation context.
8. Discussing the Past Has
Value for the Present
"When they are
following the transformative approach to practice, [mediators] not only allow
but even encourage disputants to talk about past events-the history of the
conflict-because doing so is often a very good way to achieve the goals of
empowerment and recognition." [FN214] Mediation online satisfies this hallmark. Online mediation may
offer greater safety to parties to remember and air past grievances or
injuries. In addition, parties will be able to see the text of the adverse
party's views. Instead of hearing it one time, it may be read repeatedly for
better and better recognition of the other's experience of what happened.
9. Conflict May Be a Long-Term
Affair
"Interveners who
understand the transformative framework are aware that their work involves
stepping into a stream of interaction that began before the intervention and,
in most cases will continue in some form after the intervention is
finished." [FN215] With this in mind, online mediators might suggest several
meetings online or maintain an open communication with the parties. One advantage
of online mediation is that the parties may engage in ongoing discussions that
are not necessarily limited to a formal set time.
10. Small Steps Count
Success is an incredibly
motivating factor in mediation. [FN216] Online mediators can detect micro-accomplishments of empowerment
and recognition that text reveals.
In sum, not only can the transformative approach to mediation be utilized
online with little adaptation, but also many characteristics may actually be
enhanced by their application online. Even though some of the characteristics
may suffer slight application problems, mediators may be properly trained to
overcome these issues and utilize the transformative approach with little
problem, and in some circumstances, online mediation may be the superior
alternative.
*62 D. Computer-Mediated Communications Theory as Applied to
Traditional Mediation Theory
Social science literature and personal experience have demonstrated that
computer-mediated communication and face-to-face communication are different. [FN217] The question is how to
eliminate or minimize the perceived negative aspects of CMC or, better, how to
turn perceived difficulties into assets during the mediation.
At a strategic level there are
several ways to address the issue: (a) develop mechanisms to adapt people to
the computer environment (i.e., fit the people to the technology); (b) alter the computer environment so
that it matches face-to-face communication (i.e., fit the computer environment
to meet the usual expectations and familiar interaction patterns of potential
users); (c) use a mixed or optimizing strategy in which different combinations
of computer and face-to-face communication techniques are employed (e.g.,
select the best medium or mix of media for the task and group relationships). [FN218]
These options are not exclusive. Already, as individuals go online, they are
adapting to the technology. Simultaneously, software is being written to adapt
technology to the human element. In the future, mediators will have increasing
opportunities to use new forms of technology and new software programs to
facilitate CMC, and as the technology already demonstrates, opportunities to
engage in new problem solving techniques that are difficult, if not impossible,
in face-to-face communication.
III. PRACTICE OF
ONLINE MEDIATION
In selecting tools for online mediation, the mediator should be aware of the
cultural impact of the chosen technology. Frequently the participants will be
from different real-world and technological cultures and may react to mediation
technology differently. For example, if face saving is an instrumental skill in
a party's culture, technology should be chosen to allow the possibility of face
saving. When
mediating between two individuals of different status in a culture where status
is instrumental, the mediator may wish to level the playing field by using
technology that eliminates status cues, thus empowering the lower status
individual or technology to re-create those cues.
A. Online Programs
There are many ODR programs. [FN219] These programs fall into three primary classifications: (1)
programs that use computer-mediated communication merely to facilitate the
administration of physical-presence mediation; (2) hybrid-mediation programs,
those in which the mediator may use virtual- presence, physical-presence, or
some mixture of the two during the course of the mediation; and (3) virtual-*63 mediation programs, which exist
entirely online and rely solely on virtual presence during the course of the
mediation. Of the virtual-presence mediation programs, there are two main
categories: those that use technology as an aid to a human mediator and those
that rely on the software-as-mediator to bring resolution to the dispute. Both
uses of technology in mediation present interesting possibilities,
opportunities, and challenges.
1. Physical-Presence and
Virtual Administration
Existing mediation providers are increasingly moving onto the Internet to advertise their mediation
services. [FN220] Many online mediation
services do not actually mediate online but rather provide information online
or allow parties to complete forms or complete other administrative tasks
online. The actual mediation takes place in the physical presence of the
mediator and the parties. [FN221] The use of technology to reduce expenses and to facilitate the
routine administration and tasks associated with scheduling mediation does not
implicate the concerns raised in this article.
2. Hybrid Mediation
Hybrid-mediation projects use both face-to-face (physical presence) and online
(virtual presence) mediation techniques. The mediator may start the mediation
in person, allowing the parties to develop an impression of each other. The
mediator may then proceed online to work through the issues, but at any point
in the mediation process where a face-to-face meeting would be helpful, the
mediator may bring the parties together. This eclectic approach to mediation
permits the mediator to fashion a suitable mediation process to meet the
social, emotional, and financial needs of the parties under almost all
circumstances.
The University of Maryland online mediation project steps away from the
technological focus of most online dispute resolution programs. Unlike most
online mediation programs that focus on ecommerce or commerce, the primary focus of this program is
family law mediation. This program utilizes email as its primary communication
method. [FN222] In certain circumstances,
face-to- face meetings are also used. This eclectic mixture of mediation
options is superior to either solely physical presence or solely virtual
presence mediation. Hybrid mediation permits the mediator to move along a
continuum of options as needed by the mediation process. This is just the
beginning of a new trend in online dispute resolution in that many more types
of disputes will be added to the online mediation process.
*64 3. Virtual-Presence Mediation
The virtual-mediation projects may easily be classified into two groups: those
projects that use technology to assist the human mediator and those projects
that rely solely on technology to mediate the dispute.
a. Technology in
Aiding Human Mediator
In the human adjunct programs, the technology is merely one more tool for the
mediator, but the mediator does not meet with the parties face-to-face. The
mediator selects from a palette of options depending on the nature of the
dispute, the technology available to the parties, and the relationship between
the parties. This type of mediation permits the mediator to take advantage of
any opportunities presented by the parties to assist them in reaching a settlement. Since this is
the most flexible form of mediation, it should be the preferred option in the
vast majority of online mediations when the dispute presents complex issues and
interests that are not readily quantifiable. [FN223]
The University of Massachusetts Online Ombudsman Office is considered the
premiere online mediation program. This online dispute resolution program
focuses on disputes rising out of online activity. [FN224] The dispute resolution
utilized in this program is predominantly mediation. [FN225] The program selectively
incorporates technology in the mediation process and uses technology to enhance
the capabilities of the mediator. Upon receiving a complaint, the mediator
contacts the other party via email, informs the party about the program, and
asks whether the party is willing to mediate. [FN226] Each party then has the
opportunity to present its wants, needs, desires, and claims. The mediator then
attempts to distill the fundamental issues and relevant facts. This
agenda-setting phase may require several attempts before the mediator expresses
the dispute in a manner acceptable to the parties. This process of schema and
correction is repeated, with the parties growing closer until they agree.
"The mediator facilitated the information exchanges by providing a
buffer, soliciting discussion and responses, and reformulating not only the
dispute but also the claims of each party in search of that ground where a deal
might be constructed. At the decision point, if there was not the necessary movement for
determinative resolution, the disputes were considered at impasse and largely
left dormant (or to the devices of the parties themselves)." [FN227]
*65 b. Technology as Mediator
For some mediation projects, the role of the mediator in setting the agenda and
facilitating the process is vested entirely in the code of the software used by
the project. These programs work well when the economic value of the dispute is
easily quantifiable, the parties do not seek personal reconciliation, and there
are opportunities for mutually beneficial exchange. In contrast, they do not
work well when the issues are not readily reducible, or where repeat players
require an adjustment to their relationship.
An example of a code-based mediation program is Cybersettle, a patented
double-blind bidding process. [FN228] By online mediation standards, Cybersettle is a success.
Cybersettle has helped its clients settle over $50,000,000 in claims, is used
directly or by administrators for over 475 insurance companies, and has over
60,000 users. [FN229] Cybersettle is the exclusive "settlement tool" of
the Association of Trial Lawyers of America (ATLA). [FN230] This endorsement by both the
plaintiff and defense side attorneys in the personal injury bar is a strong
endorsement of the integrity of the Cybersettle process and its ability to
deliver a fair settlement to both sides of a personal injury dispute. Cybersettle allows the parties
to make confidential offers of compromise. "If the offer is within, a
preset settlement formula, typically, 30% or $5,000 of the demand, the case
immediately settles for the mean amount." [FN231] Each round starts the
process fresh, offers are not compared between rounds. If the parties do not
settle, they can resubmit the process to Cybersettle with new offers or
negotiate directly. Since neither side knows the others side's offers, this
negotiation strategy does not influence subsequent attempts to settle the
dispute. Because Cybersettle is automated, it is a relatively inexpensive
method of resolving a dispute. Cybersettle's fees range from $100 to $1,000
based on the value of the settlement, and the parties pay only if they settle. [FN232]
c. Software
Assistance
Any analysis of online mediation would be incomplete without including at least
an introduction to some of the various types of software that may facilitate
the mediation process. Through the use of such software, parties may be able
literally to visualize their positions or gain a better understanding of the
adverse party's position. This field is rapidly changing and no discussion
could possibly be complete. The section presents a sample of the products that
are available to online mediators.
SmartSettle is an online negotiation assistance program that facilitates the
negotiation process. [FN233] SmartSettle assists the parties to observe visually the progress *66 of a negotiation through the use
of graphic displays that guide a negotiation through a six-stage process. [FN234]
Step 1. "Prepare for
Negotiation"
Parties request a SmartSettle
case number by completing an online intake form. The parties may engage a
SmartSettle mediator or select their own mediator.
Step 2. "Qualify
Interests"
Mediator helps the parties to
discuss their mutual interests and to identify issues without taking positions.
The parties also agree on a "Framework for Agreement" [a] template
blank form that will later be completed using the terms subsequently agreed to.
Step 3. "Quantify
Satisfaction"
Parties exchange initial
proposals with a range for negotiation. The mediator works with each party to
elicit confidential preferences.
Step 4. "Establish
Equity"
Parties exchange information
and offer concessions. "Based on party preferences and concessions made
by each party, packages are generated for the parties to consider." The
mediator assists the parties to find common ground for resolution.
"Equity is achieved by the parties when they accept the identical
package as a tentative solution."
Step 5. "Maximize
Benefits"
Software engages in preference
analysis and optimization to generate possible improvements to the tentative
solution.
Step 6. "Secure
Commitment."
As soon as any party
terminates the process, software automatically completes the "Framework
for Agreement" with the current solution for signature by the parties.
In the penultimate stage of the SmartSettle process, SmartSettle suggests an
"improvement" for the parties, which they may accept or reject, or
they may continue negotiating. [FN235] SmartSettle is the bridge between online mediation and software
assistance. Among the various applications for SmartSettle are
1. "Facilitates
multi-party negotiation cases with any number of quantitative or qualitative
issues"
2. "Connects
stakeholders and interveners to a negotiation from anywhere in the world"
3. "Elicits complex
preferences by allowing parties to associate confidence in relative importance
of issues and package rating"
4. "Accurately models
negotiation cases and party satisfaction functions allowing parties to
experiment with 'what if' scenarios"
5. "Allows parties to
keep track of all packages discussed throughout a negotiation"
6. "Generates fair
compromises, equivalents and optimal solutions apportioning benefits according
to an equity reference established by negotiating parties" [FN236]
7. Allows for simultaneous
real-time online responses; and
*67 8. Permits automated mediation of disputes in simple, routine
disputes.
SmartSettle attempts to be a comprehensive online mediation software package.
If one were to select one tool to introduce novice online mediators to online
mediation, it would be SmartSettle. SmartSettle is easy to learn and easy to
teach clients to use. Yet, it has so many potential uses that an experienced
online mediator will constantly discover new ways to use it to facilitate
online mediation.
(2) Legalspace
Legalspace assists online mediators with the daunting task of presenting the
options available to the parties in a comprehensive and comprehendible manner. [FN237] Legalspace uses experimental
graphics to visualize the available options. [FN238] For visual learners, among
others, this can facilitate the parties' understanding of each others' positions and their varying
needs. A few of the major utilities are a calendar function that records the
discussions of the mediator and the parties in chronological order, a Gantt
Chart to record events as the parties remember them, an outline program that
shows the issues and sub-issues as identified by the mediator, an adjustable
bar chart that allows the parties to define interactively the relative
importance of issues from their perspective, a decision tree that works like a
flow chart to assist the mediator to outline the options available to the
parties, and the "Gantt Chart for Agreement" to outline the terms
of the agreement. [FN239] One of the more interesting utilities is the
"heatmap."
On the HeatMap, the issues are
represented by the oval, and the color matches the one on the Adjustable Chart.
The importance of the issue is represented by the location of the oval
vertically. The mediator's contribution is to define the distance of the
parties on each issue, as he or she perceives it by dragging the ovals
horizontally. The object of the mediation process is to aim towards moving all
the ovals to the left. [FN240]
Legalspace is an excellent tool in any mediator's repertoire to assist the
parties in resolving their dispute. Legalspace assists the mediator to
facilitate the parties' imposition of structure on the mediation and to flesh
out or demonstrate issues and concerns. The HeatMap utility is an excellent CMC
method of
enriching the communication and allowing a party to present
"safely" hot button concerns without unnecessary affect.
(3) DATA
Decision Analysis by TreeAge (DATA) is a computer-based risk analysis program
that facilitates the negotiation process through the use of a "decision
tree." [FN241] The software, although it incorporates little graphical material,
utilizes tree *68 branches to show the parties the available options and potential
consequences. [FN242] Decision Analysis assists the parties to evaluate the issues that
will affect the outcome at trial. Issues such as those raised by pretrial
discovery, nature and complexity of the issues at trial, credibility of
witnesses, possible counter-claims, unresolved statutory issues, whether the
defendant will pay a judgment and possible outcomes should the case go on
appeal, may be analyzed based on confidence intervals using Decision Analysis. [FN243] "Using such software,
many mediators have been able to facilitate a cooperative effort among
litigants and lawyers to arrive at a joint valuation of the dispute." [FN244] Decision Analysis is an
excellent tool to use to educate the attorney or the client on possible
weaknesses in their litigation strategy that may affect the settlement value of
the case.
C. Recommendations
The online
mediator should begin by educating the parties as to the mediator's
expectations for online mediation: time requirements, technology requirements,
confidentiality requirements, and financial requirements. The mediator should
reserve the right to decline to continue with online mediation, or to convert
the mediation into physical presence mediation, if the mediator judges that
online mediation is no longer suitable. These expectations should be written in
the agreement retaining the mediator.
"The right tool for each job" should be the mantra of online
mediators. Online mediators have a palette of tools to select from in any given
mediation. Mediators should consider the technical sophistication of the
parties in selecting technology to be used. Mediators should also consider the
cost of licensing proprietary software or purchasing hardware for the
mediation. Mediators should assure themselves that parties have access to the
technology. Access is more than availability. Access, for the purposes of
mediation integrity, is the capable or proficient use of the technology. [FN245] An efficient method of
assuring access is to verify independently the parties' use of the technology.
For example, the best way to assure that parties can use email is to send them
email. Mediators should not assume the ability to use email includes the
ability to send attachments. Mediators must consider the impact of the
technology on the process. Technology is not neutral. Technology emphasizes
some aspects of communication and minimizes or eliminates others. The mediator must be aware
of what aspects of communication are important at each point in the mediation
process. The mediator must be able and willing to manipulate the technology in
furtherance of the mediation process.
A second concern should be that the mediation does no harm. Ecommerce disputes
are potentially legal disputes. The mediator and the parties should realize
that mediation takes place in the larger meta-context (shadow) of the law. The
mediator and parties should, by contract and other private law mechanisms, endeavor
to ensure, should the mediation fail or be challenged in court, that the *69 intent of the parties governs
the subsequent dispute. [FN246] For example, the mediator and parties should agree to default
rules for governing actions that may arise subsequent to the mediation. Since
the legal default rules governing the mediation may be unclear, the mediator
and parties must work to ensure that the underlying law supports the mediation.
The golden rule of mediation should be that no party should be worse off
because the party voluntarily agreed to mediate.
Finally, the mediator must work hard. Effective online mediation requires the
mediator to enrich the communication medium and reduce ambiguity. The mediator
must be aware of what happens in physical presence mediation and endeavor to
replicate those aspects of physical presence mediation that are useful in a
virtual mediation. For example, the normal social pleasantries that take place
when the parties meet during mediation are absent online. In fact, the parties may have never met, and
the mediator may have to work hard to humanize the parties. The mediator must
endeavor to promote understanding while endeavoring to reduce unintentional
faux pas related to the communicative medium. This may require that the
mediator educate one or both parties about the social and linguistic
conventions of interacting in cyberspace. This also requires an awareness of
the nature of each communicative tool that the mediator will use during the
course of the mediation.
IV. ONLINE
MEDIATION PARADIGM
No article on mediation would be complete without a simulation exercise. The
following presents a simulation of an online mediation and what an online
mediator should be aware of in computer-assisted facilitation of disputes.
Our facts are simple. Newventure, Ltd (London, England) is an Internet-based
business selling widgets. It uses a software product by Acme, Inc. to manage
its inventory and accounting system. Newventure orders and downloads the latest
version of AcmePro v. 4.0. The specifications for AcmePro v. 4.0 state that it
works with all versions of the operating system used by Newventure. Since the
release of AcmePro v. 4.0, a newer version of the operating system was
released, and Acme, Inc (Elysian Fields, California) was unaware of this
release. Newventure recently upgraded its data management capabilities and
installed the latest version of the operating system and AcmePro v. 4.0. Because AcmePro v. 4.0 is
not compatible with the upgraded operating system, all Newventure's data
processing operations *70 immediately cease and Newventure must process data manually.
Newventure threatens to sue and to issue a press release.
(Confidential) Newventure discovers that, were it to change data management
programs, the cost of migrating to a new platform would be prohibitively
expensive and time consuming. Newventure must have its data management system
online within a week or face changing database management systems or going out
of business.
(Confidential) Acme is embarrassed that it did not update its webpage but feels
that its various disclaimers provide adequate protection. Acme has no intention
of fixing AcmePro v. 4.0 since v. 5.0 will be out within a matter of months.
Currently, Acme is secretly testing a beta test version of v. 5.0 that is
optimized to work on the new operating system.
(Mediation Instruction) Congratulations, you are being considered as the online
mediator. This is your first online mediation. Initially, as in any mediation,
you must educate the parties and determine if you are the right mediator. The
starting point is your draft of your online submission form. At this point, you
may email basic materials to the parties on mediation, the mediation process,
your approach, and your curriculum vitae. As you are building the parties'
confidence in your abilities as a mediator, you must also determine whether the
dispute is susceptible to online mediation. So, you contact the parties. You
explore what technology they have available, e.g., bandwidth,
videoconferencing, email, and whether the parties are comfortable using
technology to discuss their dispute. You must also consider the software
options. What software is available to the parties and which mediation software
packages may facilitate resolution of this dispute? As in face-to-face
mediation, youwant to explore the nature of the dispute and the concerns of the
parties regarding online mediation or technology-related concerns. You may also
wish to consider how the laws of the relevant jurisdictions may affect the
mediation. You may conduct discussions with the parties until you are
comfortable, in your professional judgment, that this dispute is capable of
being resolved through online mediation or you recognize that because of costs
or other concerns, face-to-face mediation is the superior alternative to online
mediation.
If the mediation is asynchronous, then the parties should be asked to notify
the mediator if they will be unavailable by email for more than twenty-four
hours, preferred or alternative email addresses, how long the parties have to
respond to email, and other similar ground rules. If the mediation may require
attachments, you want to establish which format will be used and any other
technology requirements. You must make the parties aware that electronic
communications made as part of the mediation process are confidential and may not be further
distributed without the consent of all the parties and the mediator. If a
message is inadvertently disclosed, then all parties and the mediator must be
immediately notified. This ends the mediator instructions.
We do not have space to go through this simulation in greater detail. We would
choose SmartSettle for this dispute as the superior alternative. Clearly a
blind bidding program would not result in an optimal solution, since that would
entail a series of amount bids until the parties bid a settlement figure within
a fixed percentage of each other and the software would then settle within the
agreed range. The theoretical optimal resolution is for Newventure to use the
v. 5.0 beta software *71 under a confidentiality agreement until the new AcmePro v. 5.0 is
released, then to buy the new software. In exchange, Acme would receive a
release from liability, a possible positive review, and an additional test
facility. These non-financial interest-based resolutions require a skilled
mediator to engage in candid discussions with the parties and confidence
building measures.
CONCLUSION
Mediators, legal scholars, and policy makers must consider the existing and
potential technical and legal infrastructure that supports and will support
mediation. But, this is infrastructure, a basis on which to build online
mediation. The many ongoing scientific studies of computer-mediated communication should
inform their view on if, how, or when online mediation is feasible or
desirable. As research progresses, the assumptions underlying online mediation
should evolve. With these caveats, disputes arising out of any potential subject
matter may be resolved using computer-mediated communication. The only
limitations on online mediation are the needs of the parties and the mediator.
Online mediation will not be an appropriate forum for every dispute. [FN247] Some disputes will not be
suitable because the physical presence of the parties or the mediator is
required to bring closure to the conflict, but there should be no blanket
requirements for either physical presence or virtual presence mediations. This
is a judgment call best left in the first instance to the parties or to the
sound discretion of the mediator. Finally, training in the proper selection and
use of technology should be incorporated into the training of existing and
future mediators.
*72 APPENDIX A
ONLINE ADR PROTOCOLS [FN248]
I. Description of the Process
The process of Online Mediation typically involves a series of email messages
between the mediator and each participant. In his or her professional discretion, the mediator
may utilize joint email communication, web forum (more highly secure)
discussion, textual or audio chat, instant messaging, fax and phone
communications.
MIRC's (Online Mediators) program encourages mediators to structure their
facilitation in the following manner:
A. [P]articipants should be
encouraged to present one or more confidential statements to the mediator
setting forth the issue(s) they believe are in dispute, their interests for any
settlement, and the various options the participant[s] see[] as possible.
B. The mediator should
summarize the issues and seek to gain agreement that the full range of
presented issues will be addressed.
C. The mediator is then
encouraged to engage in a series of private electronic conversations with each
participant, and jointly with participants in the mediator's professional
discretion. These conversations are to include questions to fully understand each
participant's perspective, interests and perceived options, as well as any
comments and suggestions that may further settlement by the mediator.
D. Upon conclusion of the
electronic conversations, there should either be a confirmed settlement,
including means of implementation, or the mediator's declaration that no
agreement has been reached.
E. If there is a settlement,
the mediator should prepare a summary of the terms of settlement and
ask each side to confirm that they will abide by the terms.
II. Suggested Ground Rules
A. PRE-MEDIATION
RESPONSIBILITIES
1. The participants are asked
to notify the mediator of any travel plans or other circumstances that may
prevent them from participating for more than 24 hours in the mediation.
2. The participants are asked
to notify the mediator of any acceptable alternative email addresses in the
event of technical difficulty.
B. SENDING/RECEIVING EMAIL
1. In the event the mediator
sends a message to both parties at one time, be aware that REPLY TO ALL will have
you sharing information with all listed participants. If you want to only
contact the mediator, be sure that you simply *73 REPLY. You can never be too careful in ensuring that only those
whom you want to get your message are in fact sent your message.
2. The mediator should respond
within 24 hours of receipt of any participant email message or other
communication.
3. It is the responsibility of
all participants to check their email at least once per 24 hours and to be
responsive to mediator communications.
C. DELAY IN SENDING/RECEIVING
EMAIL
In the event there is a delay
in receiving a response online, the mediator shall be empowered to telephone,
fax or use whatever other means are available to contact a participant. The
parties should assume that if there has been no contact for 3 days, they should
make every effort to contact the mediator and determine what the problem is.
D. ATTACHMENTS
It is possible that the
mediator will be transmitting attachments to certain messages. If this occurs,
it is important that all participants are able to read the attachment(s). The
mediator is therefore to seek to obtain agreement on an acceptable format (i.e.
Word, Wordperfect, Rich Text Format or ascii) at the beginning of the
mediation.
E. DISTRIBUTION OF MESSAGES
All electronic communications
generated from the mediation shall not be permitted to be distributed to a
non-participant at any time without the express permission of all parties and
the mediator. In the event of an inadvertent distribution, all effected
participants shall be promptly notified.
F. MANAGEMENT AND DISCLOSURE
OF INFORMATION ONLINE
The mediator shall only
disclose specific offers and ideas from one participant to another as the
mediator is expressly authorized to share. If it is unclear whether a mediator
is authorized to share information, the mediator shall request this permission from a participant and only
share information with the other participant as is authorized.
G. PRIVACY PROTECTED
1. The participants agree to
not use any of the information presented or received during the mediation in
any future legal, administrative, or other contested proceeding, nor in the
media. This provision may be problematic depending upon the jurisdiction in
which the mediation takes place. This includes all communications between the
participants and with the mediator and OnlineMediators program from the
earliest contact regarding possible mediation to the completion of the
mediation.
2. The participants further
agree to not disclose any information presented or received to other people who
are not participants to the mediation, with the exception of participant
professional advisors (attorneys, financial advisors, union representatives,
and the like). In all such events, that fact that a participant consults with a
professional advisor does not in any way lessen the confidentiality of the
online mediation process. The confidentiality of Online Mediation is intended
to protect all participants with the expectation of such confidentiality (non-
admissibility and no contacts with media) and also to protect the mediator and
OnlineMediators Program.
[FNa1]. Assistant Professor of Law
and Director, Center for Technology and Intellectual Property Law, University of
Toledo College of Law (lgibbon @utnet.utoledo.edu). Professor Gibbons would
like to thank The Straus Institute for Dispute Resolution at Pepperdine
University School of Law for permitting him to participate in its outstanding
program as a faculty scholar and The University of Toledo College of Law for a
faculty research grant.
[FNa2]. Associate Professor of Law, College of Law, University of Toledo
College of Law. The authors would like to thank Ms. Kristina L. Niedringhaus
for her invaluable assistance in researching this article and Ann Bartow,
Robert Hopperton, Eugene Quinn, Daniel Steinbock, William Richman, and the
commentators of the Central States Law School Association for their insightful
comments. The authors would also like to thank Ms. Diane Bohn for her many
contributions to this article and Todd Burger for his research assistance.
[FNa3]. Associate, Saliwanchik Lloyd & Saliwanchik, Orlando, FL. Mr.
Gibbs would like to thank Carolyn and Raymond for their unconditional love and
support and Professors Gibbons and Kennedy for their undying support and
constant encouragement. Dedicated to the loving memory of Raymond Thomas
Salzmann, "the richest man I have ever known." The opinions
expressed in this article are those of the authors and affiliations are listed
only for identification
and disclosure purposes.
[FN1]. Santa Esmeralda, Don't Let Me Be Misunderstood (Phillips Records
1979).
[FN2]. ADR is not one method of resolving disputes but is rather
shorthand for numerous methods such as mediation, arbitration, and mini-trials
that are used to avoid traditional litigation. See, e.g., Black's Law
Dictionary (7th ed.1999).
[FN3]. See generally Ethan Katsh et al., E-Commerce, E-Disputes, and E- Dispute Resolution: In the Shadow
of "ebay law," 15 Ohio St. J. on Disp. Resol. 705 (2000).
[FN4]. Roberta S. Mitchell & Scot E. Dewhirst, The Mediator
Handbook: A Training Guide to Mediation Techniques and Skills 3 (1990)
(describing mediation as "organized negotiation," a
"voluntary dispute resolving process in which a third-party facilitates
and coordinates the negotiations of disputing parties") (emphasis
omitted). Kimberly Kovacs defines mediation as "assisting parties to
reach a mutually satisfactory or acceptable resolution and assisting
individuals in achieving a new perception of their relationship and attitudes."
Kim Kovacs, Lawyer
Ethics in Mediation: Time for a Requirement of Good Faith in Mediation., Disp.
Resol. Mag., 9-13 Winter 1997, at 9.
[FN5]. John W. Cooley, Mediator & Advocate Ethics, 55 Disp. Resol.
J., Feb. 2000, at 73, 75.
[FN6]. Robert S. Greenbaum, "R" Is for Resolution: ADR in
the Commercial Law Setting, New Jersey Law., Aug.-Sept. 1993, at 27, 29.
[FN7]. See Kovacs, supra note 4. Cf. Edward F. Sherman, Good Faith
Participation in Mediation: Aspirational, Not Mandatory, Disp. Resol. Mag.,
Winter 1997, at 14.
[FN8]. Judith P. Meyer, The Pros and Cons of Mediation, 52 Disp. Resol.
J., Summer 1997, at 8, 15.
[FN9]. Joel B. Eisen, Are We Ready for Mediation in Cyberspace?, 1998 BYU L. Rev. 1305,
1308-09. "Theories of strategic choice
imply that trust is a precondition of sharing information." Jim Sheffield,
The Effects of Bargaining Orientation and Communication Medium on Negotiation
in the Bilateral Monopoly Task: A Comparison of Decision Room and Computer
Conferencing Communication Media, in Chi'89 Proc. (K. Bice & C. Lewis eds., May 1989).
[FN10]. See Eisen, supra note 9; Bruce Leonard Beal, Online Mediation: Has Its Time Come?, 15 Ohio St. J. on Disp.
Resol. 735 (2000); William T. D'Zurilla, Alternative Dispute Resolution, 45 La. B.J. 352 (1997) ("There is almost universal agreement that mediation is
most effective if the parties to the dispute are physically present before the
mediator."); see also Kathleen Valley, The Electronic Negotiator, Harv.
Bus. Rev., Jan.-Feb. 2000, at 16, 17, available at
http://www.mediate.com/articles/valley.cfm (comparing face-to-face negotiation
with online negotiation and finding face-to-face superior).
[FN11]. See Beal, supra note 10, at 737; see also Eisen, supra note 9,
at 1308-09.
[FN12]. See generally Katsh et al., supra note 3, at 710.
[FN13]. "[T]he field of Communication is the 'offspring' of five
different disciplines: psychology, psychiatry, anthropology, sociology, and
ethnology." An Overview of Nonverbal Communication in Impersonal
Relationships, at http:// www.hamp.hampshire.edu/° enhF94/kinesics.html (last
visited March 12, 2002). The authors concede that they have barely scratched
the surface of this literature and merely present some theories of computer-mediated
communication that would be useful to legal mediators.
[FN14]. The authors base this assertion on numerous queries such as
"(computer /s mediated /s communication) & ADR mediation" in the
Westlaw TP-ALL database. Using this methodology, the authors were unable to
locate any relevant documents.
[FN15]. Context refers not merely to non-determinate background; context
refers to any set of conditions and factors that dynamically endow a
transaction or dispute. Context exerts force on bargaining behavior. Donald G.
Gifford, A Context-Based Theory of Strategy Selection in Legal Negotiation,
46 Ohio St. L.J. 41, 47-48 (1985).
[FN16]. See Reno v. American Civil Liberties Union, 521 U.S. 844, 849 (1997).
[FN17]. See William J. Holstein, A Motorola Coaster: How the Venerable
Company Snapped Out of Its Funk, U.S. News & World Report, June 21, 1999,
at 42.
[FN18]. See Reno, 521 U.S. at 849. Also known as
Internet access providers (IAPs), they are companies that provide subscribers with
access to the Internet. See Ian C. Ballon, Internet Issues for the Travel Industry, 790 PLI/Comm. 11, 19-20
(1999).
[FN19]. "Email" is the electronic transmission of
information via a local area network (LAN) to a wide area network (WAN) through
the Internet to another Local Area Network to the recipient. See Ballon, supra
note 18, at 18.
[FN20]. "A Web site is an electronic location on the World Wide
Web that may contain text, graphics, visual images or sound." Ballon,
supra note 18, at 20. "Web sites are comprised of multiple
"pages" (that may be shorter or longer than actual paper pages of
information)." Id.
[FN21]. See Reno, 521 U.S. at 849.
[FN22]. Id.
[FN23]. Llewellyn Joseph Gibbons, No Regulation, Government Regulation, or Self-Regulation: Social
Enforcement or Social Contracting for Governance in Cyberspace, 6 Cornell J. L.
& Pub. Pol'y 475, 485 (1997).
[FN24]. See generally The Graphic, Visualization & Usability
Center's (GVU) 10th WWW User Survey, available at
http://www.gvu.gatech.edu/user_ surveys/survey-1998-10/graphs/general/q56.htm
(last visited Oct. 28, 2001).
[FN25]. "A form of interactive online communication that allows
you to have real time conversations with others on your computer. Chatting on
the Internet can take place via Web pages in places known as chat rooms or on
IRC channels. Either way, when participating in a chat discussion, your
messages are instantaneously relayed to other members and their messages are
instantaneously relayed to you." See
http://www.netlingo.com/lookup.cfm?term= chat (last visited Oct. 28, 2001).
Short for Multi-User Dungeon
(or Multi-User Dimension) a cyberspace
[FN26]. where users can take on an identity in the form of an avatar and
interact with one another. Originally, MUDs tended to be adventure games played
within enormous old castles with hidden rooms, trap doors, exotic beasts, and
magical items. Nowadays, the term is used more generically to refer to any
cyberspace. MUDs are also known as 3-D worlds and chat worlds.
See http://www.webopedia.com/TERM/i/instant_messaging.html (last visited Oct.
28, 2001).
[FN27]. "A product developed by Microsoft Corporation that
enables groups to teleconference using the Internet as the transmission medium.
NetMeeting supports Voice on the Net, chat sessions, a whiteboard, and
application sharing. It's built into Microsoft's Internet Explorer Web
browser," at http:// www.webopedia.com/TERM/N/NetMeeting.html (last
visited Oct. 28, 2001); Microsoft, at http://www.microsoft.com (visited May 9,
2000).
[FN28]. Gibbons, supra note 23, at 496.
[FN29]. For an insight on communal, almost utopian life on the Internet,
see Howard Rheingold, The Virtual Community: Homesteading on the Electronic
Frontier (1994); for the dystopian view of digital communities, see Clifford
Stoll, Silicon Snake Oil: Second Thoughts on the Information Highway (1995).
[FN30]. See generally Rheingold, supra note 29; Stoll, supra note 29.
[FN31]. See generally Rheingold, supra note 29; Stoll, supra note 29.
[FN32]. See generally Rheingold, supra note 29; Stoll, supra note 29.
[FN33]. See generally Rheingold,
supra note 29; Stoll, supra note 29.
[FN34]. "Acronym for the American Standard Code for Information
Interchange. Pronounced ask-ee, ASCII is a code for representing English
characters as numbers, with each letter assigned a number from 0 to 127."
See http:// www.webopedia.com/TERM/A/ASCII.html (last visited Oct. 28, 2001).
[FN35]. "Short for Internet Message Access Protocol, a protocol
for retrieving email messages." See
http://www.webopedia.com/TERM/I/IMAP.html (last visited Mar. 14, 2002).
[FN36]. "Short for Post Office Protocol, a protocol used to
retrieve email from a mail server." See
http://www.webopedia.com/TERM/P/POP2.html (last visited Mar. 14, 2002).
[FN37]. Mary M. Connors, Living Aloft: Human Requirements for Extended
Spaceflight, at http://www.hq.nasa.gov/office/pao/History/SP-483/ch6-3.htm
(last visited Mar. 12, 2002).
[FN38]. Jacob Palme, Support for Decisions by Email, at http://
www.dsv.su.se/° jpalme/ietf/JPMADS.pdf (last visited Mar. 12, 2002).
[FN39]. See infra Section II(C)(2).
[FN40]. "The risks of prejudice are greatest in informal
settings involving direct confrontation where few rules exist to constrain
conduct." Michelle Herman et al., An Empirical Study of the Effects of
Race and Gender on Small Claims Adjudication and Mediation, in James J. Alfini,
et al., Mediation Theory and Practice 327 (2001).
[FN41]. Id. at 394.
[FN42]. Id. at 395.
[FN43]. Http://www.webopedia.com/TERM/i/instant_messaging.html (last
visited Oct. 28, 2001).
[FN44]. Http://www.netdictionary.com/html/c.html (last visited Oct. 28,
2001).
[FN45]. Http://www.netlingo.com/lookup.cfm?term=chatroom.html (last
visited Oct. 28, 2001).
[FN46]. See generally Robert M. Bastress & Joseph Harbough,
Interviewing, Counseling and Negotiating: Skills for Effective Representation,
at 131-44 (Aspen 1990) (identifying and describing nonverbal communication and
techniques).
[FN47]. Samuel L. Davis, A Practical Guide to Videoconferencing: Need
Testimony from a Witness Hundreds of Miles Away? New Technology Can Bring the
Witness to Court-Without the Time and Expense of Travel, Trial, Mar. 2000, at
48, 48.
[FN48]. Id.
[FN49]. "[A]n international communications standard for sending
voice, video, and data over digital telephone lines or normal telephone wires.
ISDN supports data transfer rates of 64 Kbps (64,000 bits per second)."
See http:// www.webopedia.com/TERM/I/ISDN.html (last visited Oct. 28, 2001).
[FN50]. "Broadband is a descriptive term for evolving digital
technologies that provide consumers a signal switched facility offering
integrated access to voice, high-speed data service, video-demand services, and
interactive delivery services." Federal Communications Commission Website,
Glossary of Terms, at http://www.fcc.gov/glossary.html (last visited Mar. 13,
2002). Accordingly, there is no formal legal definition, but the Federal
Communications Commission frequently employs "descriptive terms such as
'high-speed services,' 'advanced services,' and 'broadband services' to refer
to a larger subset of services that end users can access with asymmetric
capabilities and speeds that are less than 200 Kbps, but are generally also
considered high-speed (i.e., greater than 128 Kpbs in a wireless environment or
144 Kbps in a wireline environment)." Federal Communications Commission
Website, Common Carrier Bureau Public Notices, at http://www.fcc.gov/Bureaus/Common_
Carrier/Notices/2000/fcc00057.doc (last visited Mar. 13, 2002).
[FN51]. Jaron Lanier, Virtually There, Scientific American, April 2001,
at 66.
[FN52]. Richard Wiseman, The Megalab Truth Test, 373 Nature 391 (1995).
This study's methodology has been criticized. See, e.g., Oliver Braddick,
Distinguishing Truth from Lies, 374 Nature 315 (1995). Professor Wiseman's
study is extremely interesting because it involved 41,471 subjects and
attempted to move from laboratory research into the "real world."
[FN53]. Id. Currently, it requires
access to Internet II, eight two- gigahertz Pentium processors, and up to sixty
cameras. Tele-immersion consumes between twenty to eighty megabits-per-second
per site. A three-way mediation, mediator, and two parties would require 60 to
240 megabits-per-second of bandwidth. A tele-immersion cluster costs $30,000 to
$50,000. Wiseman, supra note 52, at 391.
[FN54]. One basic divide among mediators concerns the extent to which
the mediator modifies the communications between the parties. As such, party-
centered, non-directive mediators assume the competence of the parties to
resolve their problem. Party-centered mediators merely afford the parties the
opportunity to communicate. Mediators who are antagonists assume greater
responsibility for increasing the parties' regard for each other and assisting
the parties to identify a viable alternative.
[FN55]. Mediator manipulation of party perceptions is commonplace among
mediators who reframe narratives and positions and employ tactics of social
influence. See Robert B. Ciadini, Influence: The Psychology of Persuasion, in
James J. Alfini, et al., Mediation Theory in Practice 93 (2001) (describing
reciprocation, commitment and consistence, social proof, liking, authority, and
scarcity); Richard Berke & Craig R. Fox, Psychological Principles in Negotiating Civil
Settlements, 4 Harv. Negot. L. Rev. 1, 39-56 (1999); Kimberlee K. Kovach,
Mediation Principles and Practice 108 (1994) (reforming involves substitution
of a party's language with, for example, neutral and broader statements of issues
by the mediator).
Robert Benjamin, a
teacher of mediation, negotiation, and conflict management theory and skills
has written:
Mediators, like trickster
figures, are in some measure illusionists.Their use of deception and strategic
intervention is calculated not for self-gain at the expense of conflicting
parties but rather for the parties' benefit. As a result, ideally, the parties
learn, but at the very least they survive the conflict. All human beings, and
especially mediators, deceive, manipulate, and even sometimes lie. That is a
given. It is the purpose of the deceit that must be examined.Ifthe deception is
designed to shift and reconfigure the thinking of disputing parties, especially
in the midst of conflict and confusion, and to foster and further their
cooperation, tolerance, and survival, then the deception may well be a
"noble lie."
John W. Cooley, Mediation
Magic: Its Use and Abuse, 29 Loy. U. of Chi. L. J. 1, 4-5 (1997) (quoting
Robert D. Benjamin, The Constructive Uses of Deception: Skills, Strategies, and
Techniques of the Folkloric Trickster Figure and Their Application by
Mediators, 13 Mediation Q. 3, 17 (1995) (quoting Loyal Rue, By the Grace of
Guile: The Role of Deception in Natural History and Human Affairs (1994) (defining noble
lie)). Compare Charles Crower, Negotiation Ethics: How to Be Deceptive Without Being
Dishonest/How to Be Assertive Without Being Offensive, 38 S. Tex. L. Rev. 713
(1997) (distinguishing between fraud that is
deception regarding material matters or withholding information when legally
obligated to disclose, from embellishment, puffing, estimates of price or
value, evasion, statements of opinion, or personal views).
[FN56]. John Feerich et al., Standards of Professional Conduct in Alternative Dispute
Resolution, 1995 J. Disp. Resol. 95, 123.
[FN57]. See Christopher Honeyman, On Evaluating Mediators, 6 Negotiation
J. 35-36 (1990) (discussing how effective mediators generate party trust
through effectiveness in investigation, empathy, inventiveness,
problem-solving, persuasion and presentation skills, distraction, managing the
interaction, and substantive knowledge). Mediators should also assume a variety
of roles that enhance effectiveness: catalyst for settlement, educator,
translator, expander of resources, bearer of bad news, agent of reality, and
scapegoat. See Joseph B. Stulberg, The Theory and Practice of Mediation: A
Reply to Professor Susskind, 6 Vt. L. Rev. 85 (1981).
[FN58]. Eisen, supra note 9, at 1331-32.
[FN59]. Allan Edward Barsky, Conflict Resolution for the Helping
Professions 45 (1999) ("Active listening refers to the intentional use
of self in order to demonstrate to a speaker that you have heard and understood
the speaker....").
[FN60]. Id.
[FN61]. "The mediation community might argue that body language
and other non-verbal techniques are critical to the success of a mediation, and
cannot be achieved through text-only mediation." Jeffrey Krivis, Taking
Mediation Online, Disp. Resol. Mag., Summer 1998, at 25.
[FN62]. Cf. Jim Melamed, The Internet and Divorce Mediation, at http://
www.mediate.com/articles/melamed9.cfm (last visited Oct. 28, 2001) (discussing
the advantages of using the Internet for divorce mediation).
[FN63]. See Ethan Katsh, Online ADR Becoming a Global Priority, Disp.
Resol. Mag., Winter 2000, at 6. Several factors to consider in selecting
disputing media are (1) geographic location of principals, (2) desire for
efficiency, (3) desire for cost effectiveness, (4) party familiarity with
online communication, and (5) desire for competitive bargaining. See also
discussion infra note 222.
[FN64]. Richer media convey more information and less ambiguity. For
example, face-to-face is richer than telephone and telephone is richer than
email. See infra Section II(B)(1) (defining media richness).
[FN65]. Sheffield, supra note 9, at 47.
[FN66]. Id.
[FN67]. See generally, Donald G. Gifford, Legal Negotiation: Theory and
Applications (West 1989); Gary T. Lowenthal, A General Theory of Negotiation
Process, Strategy, and Behavior, 31 U. Kan. L. Rev. 69 (1982).
[FN68]. Many of these legal issues are addressed in the Uniform
Arbitration Act. See Nat'l Conf. of Comm'rs on Uniform State Laws, Uniform
Arbitration Act, at http://www.law.upenn.edu/bll/ulc/uarba/arbitrat1213.htm
(last visited Mar. 14, 2002). As jurisdictions adapt the Act, the concerns
expressed in this article will become less problematic for domestic mediation.
[FN69]. See, e.g., Cal. Fam. Code § 3164 (West 1994); Mo. Sup. Ct. R. 88.05 (West 1994).
[FN70]. See, e.g., Wagshal v. Foster, 28 F.3d 1249 (D.C. Cir. 1994), cert. denied, 514 U.S. 1004 (1995) (mediators
serving without compensation in court-sponsored program have judicial
immunity); Mills v. Killebrew, 765 F.2d 69 (6th Cir. 1985) (mediators in mandatory state court mediation procedure served a
quasi-judicial function and were entitled to absolute immunity); Howard v. Drapkin, 222 Cal. App. 3d 843 (1990) (quasi-judicial immunity extended to mediators).
[FN71]. "At least 19 states provide some immunity for
mediators." Jay E. Grenig, Alternative Dispute Resolution with Forms, §
7.45 (2d ed. 2000); Cassondra E. Joseph, The Scope of Mediator Immunity: When
Mediators Can Invoke Absolute Immunity, 12 Ohio State J. on Disp. Resol. 629,
631-32 (1997).
[FN72]. Primary among the ethical obligations commonly assigned to
mediators is the obligation to remain impartial with regard to the parties and
the outcome. An additional ethical obligation prohibits disclosures of
mediation communications to parties and non-parties subject to exceptions where
the public interest in avoiding future harm is great. See Tarasoff v. Regents of University of California, 551 P.2d 334
(Cal. 1974). Further, a mediator should not
undertake to mediate a dispute if the mediator does not competently understand the subject
matter of the dispute. See Fla. R. Civ. P. 10.640 (2000). Online mediation may
require that the mediator be knowledgeable in the technologies available to use
during the course of the mediation. Cf. Developments-The Paths of Civil Litigation, 113 Harv. L. Rev. 1851, 1874 (2000) ("Certain realms of dispute resolution may also require a
neutral's expertise in a substantive field of law or industry."). More
importantly, the mediator should have expertise in the area of the online norms
that surround the transaction and the technology and software that provided the
infrastructure that led to the dispute. See Grenig, supra note 71, § 11.11
("The mediator must be able to 'speak the language' in order to gain
the parties' trust and confidence. Knowledge of thefield also enables the
mediator to clarify the facts and narrow the issues.").
[FN73]. Geetha Ravindra, Balancing Mediation with Rules on Unauthorized Practice, 18
Alternatives to High Cost Litig. 21 (2000).
[FN74]. See, e.g., Kan. Stat. Ann. § 23-603(d)
"the mediator shall decline to act as attorneyfor either party during
or after the mediation." "The mediator shall advise each party in
writing to obtain legal assistance in drafting any agreements." Id. § 23-603(c) (2000).
[FN75]. Fed. R. Evid. 408 and 409 should preclude these statements
from being admissible in federal courts and in those states that have analogous
rules of evidence. These statements may also be privileged under Fed. R. Evid. 501. See Folb v. Motion Picture Indus. Pension & Health Plans, 16 F.
Supp. 2d 1164, 1179 (C.D. Cal. 1998) (citing
Pamela A. Kentra, Hear No Evil, See No Evil, Speak No Evil: The Intolerable Conflict
for Attorney-Mediators between the Duty to Maintain Mediation Confidentiality
and the Duty to Report Fellow Attorney Misconduct, 1997 BYU L. Rev. 715, Appendix A (collecting statutes and noting that every state but
Delaware has some form of mediator privilege, although when the privilege
attaches and the scope of the privilege varies among the states); David A.
Ruiz, Asserting a Comprehensive Approach for Defining Mediation
Communication, 15 Ohio St. J. on Disp. Resol. 851 (discussing different approaches to privileges in mediation).
[FN76]. See, e.g., Ohio Rev. Code Ann. § 2317.023(B). "No person shall disclose a mediation communication in a
civil proceeding or in an administrative proceeding." R.C. § 2317.023(B) (Anderson 2001); Alan
Kirtley, The Mediation Privilege's Transition from Theory to Implementation:
Designing a Mediation Privilege Standard to Protect Mediation Participants, the
Process and the Public Interest, 1995 J. Disp. Resol. 1, 8, 16 (1995) (asserting that weight of scholarly authority is that
confidentiality is essential to mediation); ABA Meeting Examines Uniform Mediation
Act, 53 Disp. Resol. J., Nov. 1998, at 6, 6 (reflecting concern over mediation
confidentiality due to differing state laws).
[FN77]. Folb, 16 F. Supp. 2d. at 1180.
[FN78]. See generally Lake Utopia Paper Ltd v. Connelly Containers, Inc., 608 F.2d 928,
930 (2d Cir. 1979); Folb, 16 F. Supp. 2d at 1175 (noting
most courts have found the need for confidentiality in mediation); Dennis
Sharp, The Many Faces of Mediation Confidentiality, 53 Disp. Resol. J., Nov.
1998, at 56, 57.
[FN79]. Jaime A. Lee & Carl Giesler, Confidentiality in Mediation, 3
Harv. Negotiation L. Rev. 285, 285 (1998); but see Eric D. Green, A Heretical View of the Mediation Privilege, 2 Ohio St. J. on
Disp. Resol. 1, 11 (1986).
[FN80]. But see generally 9 U.S.C. §§ 201-208 (1994) (providing for the
enforcement of both domestic and foreign arbitration awards).
[FN81]. Gary B. Born, International Commercial Arbitration in the United
States 76
(1994).
[FN82]. Cf. Note, Making Sense of Rules of Privilege under the Structural (Il)logic
of the Federal Rules of Evidence, 105 Harv. L. Rev. 1339, 1357-58 (1992) ("The activity protection of mediators could be
supplemented in several waysprivate confidentiality contracts."). But see Grumman Aerospace Corp. v. Titanium Metals Corp., 91 F.R.D. 84,
87-88 (E.D.N.Y. 1981) (Courts cannot
"permit parties to contract privately for the confidentiality of
documents, and foreclose others from obtaining, in the course of litigation,
materials that are relevant to their efforts to vindicate a legal
position."). Even if the parties can select a forum that respects
mediation values, there is no guarantee that, in collateral proceedings and in
third-party proceedings not involving the parties to the mediation, courts will
respect the intentions of the parties to the mediation.
[FN83]. Henry H. Perritt, Jr., Dispute Resolution in Cyberspace: Demand for New Forms of ADR, 15
Ohio St. J. on Disp. Resol. 675, 675-76 (2000).
[FN84]. Id. Sophisticated disputants prefer international arbitration to
traditional litigation because arbitral awards are more easily enforced than
the judgments of foreign courts. No judgment of a foreign court "has
any effect, of
its own force, beyond the limits of the sovereignty from which its authority is
derived," Hilton v. Guyot, 159 U.S. 113, 163 (1895), unless a country has entered into an agreement to recognize the
judicial awards of another country. See generally Restatement (Third) of the
Foreign Relations Law of the United States § 481 (1978).
[FN85]. Ethan Katsh & Janet Rifkin, Online Dispute Resolution 2
(2001). "ODR draws its main themes and concepts from alternative
dispute resolution (ADR) processes such as negotiation, mediation, and
arbitration. ODR uses the opportunities provided by the Internet not only to
employ these processes in the online environment but also to enhance these
processes when they are used to resolve conflicts in offline
environments." Id.
[FN86]. Id. at 93-116.
[FN87]. See generally Born, supra note 81.
[FN88]. Gibbons, supra note 23, at 492.
[FN89]. Organization for Economic Cooperation and Development,
Orientation Document: Building Trust in the Online Environment: Business to
Consumer Dispute
Resolution, at http://www.oecd.org//dsti/sti/it/secur/act/Online_
trust/orientation_document.doc (last visited Mar. 13, 2002).
[FN90]. Lee Uehara, Online Arbitration Speeds Settlements, Feb. 25,
2001, Associated Press, available at 2001 WL 13676601 (Companies such as
"AOL Time Warner, AT&T, Dell Computer, IBM, Microsoft, Network
Solutions and Visa U.S.A. are working together to propose industry standards
[for online ADR].").
[FN91]. See, e.g., International Trade Law (UNCITRAL), International
Commercial Arbitration and Conciliation, available at http://
www.uncitral.org/en-index.htm (last visited Oct. 28, 2001); The 1961 (Geneva)
European Convention on International Commercial Arbitration, available at
http://www.asser.nl/ica/eur.htm (last visited Oct. 28, 2001); The 1962 (Paris)
Agreement Relating to Application of the European Convention on International
Commercial Arbitration, available at http://www.asser.nl/ica/eurapp.htm (last
visited Oct. 28, 2001); The 1965 Washington Convention on the Settlement of
Investment Disputes between States and Nationals of Other States, available at
http://www.asser.nl/ica/wash_en.htm (last visited Oct. 28, 2001);The 1972
Moscow Convention on the Settlement by Arbitration of Civil Law Disputes Resulting
from Relations of Economic and Scientific-Technical Cooperation, available at
http://www.asser.nl/ica/moscow.htm (last visited Oct. 28, 2001); The 1975 (Panama)
Inter-American Convention On InternationalCommercial Arbitration, available at
http://www.asser.nl/ica/iaci.htm (last visited Oct. 28, 2001).
[FN92]. See, e.g., Framework for Global Electronic Commerce, available
at http://www.ecommerce.gov/framewrk.htm (last modified Dec. 29, 1997); House
of Representatives. Rep. No. 91-1181, at 2 (1970), reprinted in 1970
U.S.C.C.A.N. 3001 ("[Arbitration] will serve best interests of Americans
doing business abroad.").
[FN93]. See Framework, supra note 92. As of the writing of this article,
the Bush Administration has not stated a policy in this area.
[FN94]. Communication from the Commission to the Council and the
European Parliament E-Commerce and Financial Services, available at http://
europa.eu.int/comm/internal_market/en/finances/general/ecom_en.pdf (last
visited Oct. 28, 2001).
[FN95]. As of April 2001, The Center for Information Technology and
Dispute Resolution had identified 20 online dispute resolution providers. See
http:// aaron.sbs.umass.edu/center/onlineadr.htm (last visited Oct. 28, 2001).
Perhaps the
abundance of dispute resolution providers is the best indicator of need.
[FN96]. See U.S. Dep't of Commerce, The Emerging Digital Economy 14
(1997), available at http:www.ecommerce.gov/emerging.htm (last visited Oct. 28,
2001).
[FN97]. Id.
[FN98]. Id.
[FN99]. See Office of Tax Policy, Treasury Dep't, Selected Tax Policy
Implications of Global Electronic Commerce (1996), reprinted in Daily Tax Rep.
(BNA), Nov. 22, 1996, at L-7; Andrew L. Shapiro, Digital Middlemen and the Architecture of Electronic Commerce, 24
Ohio N.U. L. Rev. 795, 795 (1999); Reuven S.
Avi-Yonah, International Taxation of Electronic Commerce, 52 Tax L. Rev. 507,
515 (1997).
[FN100]. This number was up from 7995 in 1998. U.S. Dep't of Commerce,
supra note 96.
[FN101]. Id. This number was up from 4407 in 1998 and 107 in 1997. Id.
[FN102]. Katsh, supra note 63, at 8.
[FN103]. Melamed, supra note 62, at 1.
[FN104]. Infra Section II(B)(1-4) discusses in greater detail the
theoretical perspectives initially presented in this section.
[FN105]. Eisen, supra note 9, at 1310. Eisen suggests that mediation
practices cannot easily be emulated in cyberspace because "cyberspace
is not a 'mirror image' of the physical world." Id.
[FN106]. See supra Section I(A)(1).
[FN107]. Ronald E. Rice & Gail Love, Electronic Emotion:
Socioemotional Content in a Computer Mediated Communication Network, 14 Commun.
Res. 85, 89 (1987).
[FN108]. Daniel Chandler, Shaping and Being Shaped, CMC Magazine, Feb.
1996, available at http://www.december.com/cmc/mag/1996/feb/chansel.html (last
visited Mar. 13, 2002).
[FN109]. Id.
[FN110]. Id.
[FN111]. See generally Barsky, supra note 59, at 125-26 (discussing
whether mediators have an ethical obligation to ensure a level playing field).
[FN112]. By "successful," we mean more than merely reaching
an agreement to divide a fixed pie; we mean an agreement that expands the
options and possibilities to the parties. Success in mediation is often
measured by reaching agreements. See Tina Nabatchi & Lisa B. Bingham,
Transformative Mediation in the USPS Redress (TM) Program: Observations of ADR
Specialists, 18 Hofstra Lab. & Emp. L.J. 399, 400 (2001). However,
transformative mediation defines mediation success quite differently.
Transformative mediation seeks directly to "generate empowerment and
recognition among the disputing parties." Id. at 399. "Empowerment
and recognition often result in settlement. However, this is only a secondary
effect. The theory is that experiencing empowerment and recognition will
improve each party's ability to approach and resolve both current and future
problems.[Transformative mediation] create[s] opportunities for the parties to
take control of their own decision-making." Id. at 402. Selection of
mediation strategy will depend upon the importance of settlement relative to other factors
including the nature of the relationship of the parties whether ongoing or
one-time, the number of items on the agenda, each party's choice of negotiation
strategy, the viability of alternatives to settlement, the timing of the
mediation, and each party's perception of self and fairness.
[FN113]. Eisen, supra note 9, at 1331.
[FN114]. "Culture [is] a group of individuals who share certain
common meanings[;]" yet "similar things and experiences might have
different meanings within each culture" and between individuals in each
culture. Linz Audain, Critical Cultural Law and Economics, the Culture of
Deindividualization, the Paradox of Blackness, 70 Ind. L.J. 709, 716 (1995). Mediators should assist parties to avoid deindividualization
that attributes to individuals cultural attributes or values based on immutable
characteristics, superficial tokenism, or historic stereotypes, if they are to
effectively communicate.
[FN115]. Cf. Marina L. McIntire, Interpreting: The Art of Cross-Cultural
Mediation, Proceedings of the Ninth National Convention of the Registry of
Interpreters for the Deaf 78 (1985) ("'Culture' should not be
misunderstood. We are not talking about ethnic culturesWe have a culture
because we have our own language, American Sign Language.").
[FN116]. Id. "In CMC, English is widely used and thus it
functions as a world esperanto. Unlike esperanto, which is an artificial
language, computer- mediated English takes some attributes of a lingua franca,
or a pidgin or creolized language." Alexander E. Voiskounsky, Telelogue
Conversation, 2 J. Computer Mediated Comm., at http://
www.ascusc.org/jcmc/vol2/issue4/voiskounsky1.html (last visited Mar. 13, 2002)
(concluding that Internet English is a form of pidgin English).
[FN117]. Courtland C. Lee, Cultural Dynamics: Their Importance in
Culturally Responsive Counseling, in Multicultural Issues in Counseling: New
Approaches to Diversity 23 (Courtland C. Lee ed., American Counseling
Association 2d ed. 1996).
[FN118]. R. Cathcart & G. Gumpert, Mediated Interpersonal
Communication: Toward a New Typology, 64(3) Q. J. Speech 267, 270 (1983).
[FN119]. Carley H. Dodd, Cultural Differences in Information Processing,
in Dynamics of Intercultural Communication 36 (McGraw-Hill 2d ed. 1987)
("To the intercultural communicator, an understanding of another culture
is necessary to ensure message flow, understanding, and satisfyingresults from our
communication efforts.").
[FN120]. "Shared assumptions based on physical impressions"
is an attempt to describe neutrally first and subsequent impressions. These
impressions could also be characterized as stereotypes, bias, or prejudice.
But, these are the assumptions, whether accurate or inaccurate, based on the
party and mediator's prior life experiences that will inform them of the
participants in the mediation.
[FN121]. Dodd, supra note 119, at 86-89.
[FN122]. Id.
[FN123]. Id.
[FN124]. Id.
[FN125]. Id.
[FN126]. Several states (Arizona, Colorado, Hawaii, Kansas, Michigan, and
New Jersey)
impose duties on lawyers to advise clients on dispute resolution options. Nancy
H. Rogers & Craig A. McEwen, Employing the Law to Increase the Use of Mediation and to
Encourage Direct and Early Negotiations, 13 Ohio St. J. on Disp. Resol. 831,
862-63 (1998) excerpted in James J. Alfini et
al., Mediation Theory and Practice 408-09 (2001). To ensure that lawyers
meaningfully counsel the client, Georgia requires lawyers to complete
coursework in ADR. Suzanne J. Schmitz, Giving Meaning to the Second Generation of ADR Education:
Attorneys' Duty to Learn About ADR and What They Must Learn, 1999 J. Disp.
Resol. 29, 33-35, excerpted in James J. Alfini et
al., Mediation Theory and Practice 408-09 (2001).
[FN127]. "The term 'computer mediated communication' (CMC) refers
to a type of interpersonal communication which is facilitated through the use
of a computer network or conferencing system. In contrast, 'face to face
communication' (FtF) describes the interpersonal communication setting in which
all interactants share a common space and time context and can engage in
communication where all five senses are used by the interactants." Eva M.
Jettmar & Michael W. Rapp, Computer Mediated Communication: A Relational
Perspective, Paper presented at the Annual Convention of Western States
Communication Association, 1996, at http://www.danger-island.com/°
true/papers/CMC.html (last visited Oct. 28, 2001). In this article, online mediation or virtual
mediation is mediation using CMC while physical presence mediation is
face-to-face mediation. See id.
[FN128]. Craig A. Summerhill, Computer-Mediated Communication as Publication:
Considering the World Wide Web in the Broader Sociological Context of
Communication, at http://www.cni.org/° craig/castalks/cmc.html (last visited
Oct. 28, 2001). Communication is such an integral part of the human experience
that individuals take it for granted; however, it is this basic process that is
used when mediating a dispute, and therefore it is useful to review the basic
communication paradigm. Communication has four essential elements. Id. The
"sender" is the person transmitting the message, the
"message" is the data that the sender is transmitting, the
"channel" is the medium used to transmit the message, and the
"receiver" is the person receiving the message. Id. Communication
exists when all four elements are in place. Different communication processes
achieve different efficiency levels. For example, remarkably inefficient
communication characterizes the children's game in which the first child starts
a message and the last child in a long sequence of children receives the
message. The message received by the last child bears only a serendipitous
relationship to the message sent by the first child. Other important aspects of
communication include the "signal," the degree to which the
message is received and understood; "noise," anything that
interferes with the clarity of the signal; "feedback," the receiver's
response to the sender's message; and the "reply," the data sent
during feedback. Id. One must distinguish between data, information, and
knowledge. Data is a fact that is not known to the receiver. Information is the
receipt and understanding of the data by the receiver. If the receiver does not
understand the message, data is not transformed into information. Knowledge is
the general acceptance of data by the sender and receiver's cultures. Id.
Finally, the entire process is filtered through the life experiences and
physical abilities of the sender and receiver.
[FN129]. The vast majority of the studies cited in this article
investigate email as the primary communicative technology. The authors focused
on email CMC research because it is the technology that most individuals have
access to and because email under Media Richness Theory is moderately lean,
"at the midpoint of the information richness scale," Joseph
Schmitz & Janet Fulk, Organizational Colleagues, Media Richness, and
Electronic Mail, 18 Comm. Res. 487, 491 (1991). If the Media Richness Theory
accurately describes the CMC process, then because other forms of CMC are
richer than email, if mediation via email is practicable, using other forms of
CMC are also arguendo.
[FN130]. Jettmar & Rapp, supra note 127, at 3.
[FN131]. J. Short et al., The Social Psychology of Telecommunications
(1976).
[FN132]. R.L. Draft et al., Message Equivocality, Media Selection, and
Manager Performance: Implications for Information Systems, 11 MIS Q. 355-66
(1987).
[FN133]. Jettmar & Rapp, supra note 127, at 3.
[FN134]. Schmitz & Fulk, supra note 129, at 488.
[FN135]. "This 'telephone' has too many shortcomings to be
seriously considered as a means of communication. The device is inherently of
no value to us." (Anonymous, Western Union internal memo, 1876), available
at http:// www.cisco.com/warp/public/784/packet/cache.html (last visited March
13, 2002). This quote is here merely to remind the reader that our time and
cultures have changed their perspectives on communicative media. These
perceptions are not static. See supra Section I(D)(2).
[FN136]. Schmitz & Fulk, supra note 129, at 488.
[FN137]. There is some question in the literature whether media richness
is an objective or a subjective social construct. See supra Section I(D)(2). If
media richness is a social construct, as individuals become more familiar with
CMC, participants' perception of media richness and satisfaction with online
mediation will grow. This suggests the long-term future for online mediation is
positive.
[FN138]. Jettmar & Rapp, supra note 127, at 3.
[FN139]. J.B. Walther et al., Interpersonal Effects in Computer Mediated
Interaction: A Meta-Analysis of Social and Anti-Social, 21 Comm. Res. 460, 464
(1994).
[FN140]. Jettmar & Rapp, supra note 127, at 3 (citing Walther, supra
note 139, at 468).
[FN141]. Id.
[FN142]. Keven B. Wright, Computer-Mediated Support Groups: An
Examination of Relationships among Social Support, Perceived Stress, and Coping
Strategies, 47 Comms. Q. 402 (1999).
[FN143]. Schmitz & Fulk, supra note 129, at 490.
[FN144]. Id. at 491.
[FN145]. Wright, supra note 142, at 404.
[FN146]. See, e.g., Robert F. Cochran, Jr. et al., The Counselor-at-Law:
A Collaborative Approach to Client Interviewing and Counseling 33-35 (1999);
Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling and
Negotiation: Skills for Effective Lawyering 131-44 (1990).
[FN147]. See, e.g., Charles B. Craver, Effective Legal Negotiation and
Settlement 37-60 (4th ed. 2001).
[FN148]. James J. Alfini et al., Mediation Theory and Practice 124-25
(2001).
[FN149]. Thomas A. Mauet, Fundamentals of Trial Techniques 34 (1980).
[FN150]. Law and economics
commentators on mediation assume the value of reducing psychological barriers
that hinder the negotiation process and then analyze how the mediator
"might overcome the barriers created by the strategic interaction of
two rational, self-interested negotiators." Jennifer Gerarda Brown &
Ian Ayres, Economic Rationales for Mediation, 80 Va. L. Rev. 323, 324 (1996). Some law and economics theorists posit that "mediators
can create value by controlling the flow of private information (variously
eliminating, translating, or even creating it) to mitigate against adverse
selection and moral hazard." Id. at 327. In this regime, the
mediator adds value in the manipulation of information exchange that takes
place during and between caucuses. Id. at 326 & n.8; see generally
Ian Ayres & Barry J. Nalenbuff, Common Knowledge as a Barrier to Negotiation, 44 UCLA L. Rev. 1631
(1997). As discussed in this article, CMC
provides a trained mediator numerous opportunities to manipulate and control
information exchanges during the mediation process. Accordingly, virtual
mediation should meet the needs of mediators who apply this approach to the
mediation process.
[FN151]. See Jeffrey S. Wolfe, The Hidden Parameter: Spatial Dynamics and Alternative Dispute
Resolution, 12 Ohio St. J. on Disp. Resol. 685, 686 (1997). See also Jeffrey D. Smith, The Advocate's Use of Social Science Research into Nonverbal and
Verbal Communication: Zealous Advocacy or Unethical Conduct?, 134 Mil. L. Rev. 173, 177 (1991).
[FN152]. See generally Wolfe, supra note 151.
[FN153]. Id.
[FN154]. Id.
[FN155]. Id.
[FN156]. Id.
[FN157]. Beverly Harrison et al., An Empirical Study on Orientation of
Shared Workspaces and Interpersonal Spaces in Video Mediated Collaboration, at
http://www.dgp.utoronto.ca/OTP/papers/video.mediated.collaboration/ ishii.html
(last visited Oct. 28, 2001); David Grayson & Lynne Coventry, The Effects
of Visual Proxemic Information on Video Mediated Communication, 30 SIGCHI
(1998), at http://www.acm.org/sigchi/bulletin/1998.3/ grayson.html (last
visited Oct. 28, 2001) (suggesting that proximity has no effect in
videoconferencing); Mathew Lombard, Direct Responses to People on the Screen:
Television and Personal Space, at http://nimbus.temple.edu/ °
mlombard/diss_ab.html (last visited Oct. 28, 2001) ("subjects watching larger
television screens reported more positive emotional responses to the people on
the screen and the viewing environment and selected a viewing position that
represented a smaller withdrawal from the encounter").
[FN158]. Dean H. Krikorian et al., Isn't that Spatial?: Distance and
Communication in a 2-D Virtual Environment, at http://
www.ascusc.org/jcmc/vol5/issue4/krikorian.html (last visited Oct. 28, 2001).
[FN159]. Id.
[FN160]. Id.
[FN161]. Id.
[FN162]. Smith, supra note 151, at 175.
[FN163]. See discussion of negotiation deadlines in Charles B. Craver,
Effective Legal Negotiation and Settlement 231-34 (4th ed. 2001).
[FN164]. Bastress & Harbaugh, supra note 146, at 140-43.
[FN165]. Leonard L. Riskin, Understanding Mediators' Orientations,
Strategies and Techniques: A Grid for the Perplexed, 1 Harv. Negot. L. Rev. 7,
29 (1996). Although more recent scholarship rejects the rigidity of four
distinct mediator orientations, thus suggesting that skilled mediators are
eclectic, constantly moving along a continuum according to needs of the
participants in mediation. Dwight Golann, Variations on Mediation: How and Why-Legal Mediators Change Styles
in the Course of a Case, 2000 J. Disp. Resol. 41, 42 (2000).
[FN166]. Riskin, supra note 165, at 28.
[FN167]. Lela P. Love, The Top Ten Reasons Why Mediators Should Not Evaluate, 24 Fla. St. U.
L. Rev. 937, 938 (1997).
[FN168]. See Riskin, supra note 165, at 30.
[FN169]. Id. at 26.
[FN170]. Id.
[FN171]. Id.
[FN172]. Id. at 26-27.
[FN173]. Id. at 27. By employing any of the four approaches when
mediating online, a mediator can protect each party's interests by, for
example, creating private chat rooms or sending confidential email for online
caucusing to explore bottom lines, real interests, offers that mask the true
positions, and withholding of information.
[FN174]. Id.
[FN175]. Id.
[FN176]. Id.
[FN177]. Id. at 28.
[FN178]. Id.
[FN179]. Id.
[FN180]. Id.
[FN181]. Id.
[FN182]. "The mediator may ask questions-generally in private
caucuses-to help the participants understand both sides' legal positions and
the consequences of non-settlement. The questions ordinarily would concern the
very issues about which the evaluative-narrow mediator makes
statements.[strengths, weaknesses, consequences, costs, etc.]. " Id.
[FN183]. Id. at 29.
[FN184]. Id.
[FN185]. Id. Transformation is discussed infra Section II(D)(4)(f).
[FN186]. Id. at 29.
[FN187]. Id. at 29-30.
[FN188]. Id. at 30.
[FN189]. Id.
[FN190]. Id. at 31-32.
[FN191]. Id. at 32.
[FN192]. Id.
[FN193]. Id.
[FN194]. Id.
[FN195]. Id.
[FN196]. See infra Section II(D)(4).
[FN197]. Riskin, supra note 165, at 32.
[FN198]. Id. at 34.
[FN199]. Id.
[FN200]. Joseph P. Folger & Robert A. Baruch Bush, Transformative
Mediation and Third-Party Intervention: Ten Hallmarks of a Transformative
Approach to Practice, 13 Mediation Q. 263, 264 (1996) (identifying the
principal goals of transformative mediation as empowerment and recognition).
[FN201]. Id. "[E]mpowerment means that the mediator watches for the
points in the process where the parties have opportunities to gain greater
clarity about their goals, resources, options and preferences, and then the
mediator works with these opportunities to support the parties' own process of
making clear and deliberate decisions." Id.
[FN202]. Id. at 265.
[FN203]. Id. at 266.
[FN204]. Id.
[FN205]. Id.
[FN206]. Id. at 267.
[FN207]. Id. at 268.
[FN208]. Id. at 271.
[FN209]. Id. at 272.
[FN210]. Id. at 273.
[FN211]. Id.
[FN212]. See discussion of kinesics and proxemics, supra Section II(C).
[FN213]. See supra section II(C)(2) (describing emoting).
[FN214]. Folger & Bush, supra note 200, at 273.
[FN215]. Id. at 274.
[FN216]. Id. at 275.
[FN217]. Bradford W. Hesse et al, Temporal Aspects of Computer-Mediated
Communication, 4 Human Behavior 147, 161 (1988).
[FN218]. Id.
[FN219]. http://aaron.sbs.umass.edu/center/onlineadr.htm (last visited
Oct. 28, 2001).
[FN220]. See, e.g., Mediate.com Homepage, at http://www.mediate.com (last
visited Oct. 28, 2001).
[FN221]. For an excellent article on incorporating the Internet into a
mediation practice, see James Melamed, Integrating the Internet into Your
Mediation Practice, available at http://www.mediate.com/articles/melamed8.cfm
(last visited Aug. 7, 2001). For an excellent source for practical information
of use to online mediators, see http://www.mediate.com (last visited Oct. 28,
2001).
[FN222]. Physical distance assures safety, a need in reorganizing
families in
which there has been physical or psychological abuse. For example, one study
"that compared people who chose to mediate with those who rejected the
opportunity found that 44% of the reasons given by women who rejected mediation
services offered to them centered around their mistrust of, fear of, or desire
to avoid their ex-spouse." Trina Grillo, The Mediation Alternative: Process Dangers for Women, 100 Yale L.J.
1545, 1601 (1991).
[FN223]. One of the more recent forms of ADR is the mini-trial or summary
jury trial. There is a rough ODR analogue, the virtual courtroom. See, e.g.,
iCourthouse, at http://www.icourthouse.com (last visited Mar. 14, 2002); Alan
Scott Rau, et al., Mediation and Other Non-Binding ADR Processes (Foundation
Press 2002). The model of the virtual courtroom is that an individual completes
an online form (complaint); the person being complained of has an opportunity
to respond (answer). Visitors to the website then sit as a virtual jury;
however, unlike the traditional common law jury, jurors are permitted to ask
questions and make statements, and, generally, the "verdict" is
not binding. Id. at 11. Because this article focuses on the mediator as
communications facilitator, further discussion of virtual courthouse programs
as a form of mediation is outside the scope of this article.
[FN224]. UMass Center for Information Technology and Dispute Resolution Homepage, at
http://www.ombuds.org/center/index.html (last visited Mar. 14, 2002).
[FN225]. Id.
[FN226]. Katsh, supra note 63, at 7.
[FN227]. Id.
[FN228]. Cybersettle Homepage, at http://www.cybersettle.com (last
visited Mar. 13, 2002).
[FN229]. Id.
[FN230]. Id.
[FN231]. Id.
[FN232]. Id.
[FN233]. See SmartSettle Homepage, at
http://www.smartsettle.com/flash.html (last visited Mar. 13, 2002).
[FN234]. Id.
[FN235]. Id.
[FN236]. Id.
[FN237]. See Legalspace Homepage, at
http://www.wigitek.com/legalspace.html (last visited Oct. 28, 2001).
[FN238]. "The visualization software is being implemented as a
system of Java applets linked to a database backbone to be deployed on the
Web." Id.
[FN239]. Id.
[FN240]. Id.
[FN241]. See id.
[FN242]. Id.
[FN243]. Treeage Software, Inc. Homepage, at http://www.treeage.com.html
(last visited Mar. 13, 2002).
[FN244]. Id.
[FN245]. Cf. Schmitz & Fulk, supra note 129, at 490 ("Lack of
media-related skills inhibits use; 'rich' objective features may be perceived
as irrelevant [if one] does not have the skill to access and use them.").
[FN246]. Online mediation exposes mediators to significant risks of
violation of rules prohibiting the unauthorized practice of law. In some
states, mediation is not the practice of law (see, e.g., Maine Bar Rule 3.4(h)(4)); in
others, a lawyer serving as a mediator "is acting as a lawyer."
New Jersey Supreme Court Advisory Committee on Professional Ethics, Opinion No.
676 (1994) (cited in ABA Section of Dispute Resolution, Resolution on Mediation
and the Unauthorized Practice of Law, Adopted by the Section Council on
February 2, 2002, at http://www.adrworld.com). If the mediation is subject to
the laws of a jurisdiction in which mediation is considered to be the practice
of law, a lawyer serving as a mediator may need to petition the state for
temporary admission to the bar. This significant burden would undoubtedly outweigh any advantage
of online mediation. For this and other reasons, the ABA ADR Section adopted on
February 2, 2002, a resolution explaining that "mediation is not the
practice of law," that mediator discussions of legal issues "do
not create an attorney-client relationship," that preparation of a
settlement agreement by a mediator, incorporating the parties' understanding,
does not constitute the practice of law, and that "mediators should
inform the parties: (a) that the mediator's role is not to provide them with
legal representation; (b) that a settlement agreement may affect the parties'
legal rights; (c) that each of the parties has the right to seek the advice of
independent legal counsel throughout the mediation process and should seek such
counsel before signing the settlement agreement." Id.
[FN247]. Cf. Laurie S. Coltri & E. Joan Hunt, A Model for Telephone Mediation, 36 Fam. & Conciliation Courts
Rev. 179, 182 (1998) (mediation screening for
appropriateness of telephone mediation).
[FN248]. Collin Rule, Online ADR Protocols, available at http://
webboard.mediate.com/° OnlineMediators/read?3334,333 (last visited Oct. 28,
2001) (reproduced with permission).