Mea culpa, but as a traditionalist, "Online Dispute Resolution" (ODR) had absolutely no appeal to me. After all, don’t all successful mediations require counsel and decision makers who:
- Have authority to be physically present and meaningfully engage at a mediation session?
- Become invested on the day set aside for the formal mediation so they can personally evaluate the tone, tenor and facial expressions along with the spoken word of the opposing party?
- Experience the frustration of the "negotiation dance" that leads to the ultimate late evening resolution?
Could it be that traditionally trained mediators have missed the boat, and there may be a class of mediations that lends itself to some form of ODR either in whole or in part?
John F. Kennedy may have said it best, “Change is the law of life. And those who look only to the past or present are certain to miss the future.”
During the last year or so, a number of forays into various forms of ODR have proven quite successful. I typically deal with B2B issues, personal injury claims, trade secrets and employment disputes of varying complexity involving extremely competent counsel, and ODR techniques have proven effective in a wide variety of these contexts. Each excursion has involved various mixes of joint telephone conference calls, Skype, and emails that sometimes culminate in a formal mediation session to close the deal and prepare the written settlement agreement. Sometimes the ODR in itself leads to a resolution and the electronic exchange of a finalized agreement.
As a proponent of the importance of the pre-mediation joint conference call with counsel to reach agreement on the mediation process and multiple procedural issues, this evolution in thinking may not be too surprising. In essence, in many cases the ODR activities utilized are merely an extension of the joint pre-mediation conference call where issues, problems, and concerns are more fully explored independently and confidentially with counsel and their clients. During ODR clients and their counsel can vent, express anger, and articulate their goals most effectively and the mediator can telephonically engage in real-time risk analysis in a far less intimidating fashion that may not lead to the immediate onset of significant defense mechanisms that all mediators are familiar with.
Among the obvious situations that call for the consideration of ODR are:
- Geographic separation
- Significant power discrepancies (whether actual or perceived)
- Party entrenchment that will take time to overcome before a personal meeting with the parties will be fruitful
- Assessing the mutual readiness of the parties to engage in a meaningful mediation session particularly where there are red flags concerning emotional readiness and a realistic evaluation of case risks
- Orchestrating the exchange of additional information and discovery before scheduling the formal mediation session.
ODR can be an effective vehicle for addressing all of these issues, and has been very helpful in negotiating and coordinating the reasonable exchange of information the parties believe is necessary to fully prepare for a productive mediation session. Once these issues are addressed, then the parties are ready to convene for a traditional mediation session with all the necessary individuals in attendance.
Just a quick thought on party preparation. State and federal courts, particularly the Michigan Business Courts, are gravitating toward ordering the parties to participate in ADR earlier and earlier in the litigation process. Notwithstanding this trend, there are numerous reasons the parties may not be “ready” for the ADR event, and it is important for the mediator and counsel to recognize and establish effective, cost efficient strategies designed to culminate in the most effective and productive ADR event possible. Mediators, who are selected as early in the litigation process as possible, can be most effective in working with the parties to develop strategies that ensure the ADR event – online or in person – is not a waste of everyone’s time.
From a mediator's perspective the most frustrating parts of ODR are scheduling (some form of "I forgot about the call” is much easier to use than failing to appear on the scheduled mediation date), timely submission of written materials (which may be a tad more problematic than the timely filing of mediation statements before a scheduled mediation), readiness of counsel and clients to address agenda items and issues that evolve over the course of the ODR, and the time and tools it may require for the mediator to establish trust and capital. Not unsurprisingly, where there have been complaints by counsel, the focus of the complaint is the ODR process has taken too long – a complaint that many litigators anxious to “cut to the chase” might raise during traditional mediations sessions.
Attorneys may be an inherently conservative lot. We want to stick with what we know and what we have become comfortable with. When dealing with process issues, it may be time to become familiar and comfortable with ODR where appropriate. While ODR is not appropriate for all cases in all settings, or the only tool to consider, it certainly has greater possibilities and a more expansive horizon than this mediator previously thought. Borrowing from one of the Visions espoused in the State Bar’s recently published report, 21st Century Law – The Future is Now:
"Simplify unnecessarily complex legal processes and court procedures, adopt appropriate cost-saving technology, and apply business process analysis. Provide efficient, effective, customer service in an accessible technological environment that will ensure convenient, timely, appropriate access to courts and other legal processes and information. Engage in constant innovation and evaluation."
From time to time, we all might benefit in looking at more than the past and the present to embrace the tools that can be most effective in the future.