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The digital mediator: When neutrals go tech

September 01, 2017
By Lauraann Wood
Chicago Lawyer correspondent

Imagine you’re representing a suburban driver who just wants to get the money to repair his car following a crash. On top of that, you learn the defendant wants to spend a day mediating that dollar amount in a downtown office.

Or you’re the neutral tasked with mediating cases that arose out of a natural disaster that affected thousands of people from all over the country.

Or you’ve spent weeks preparing for a mediation you struggled so hard to schedule, but receive a text from your babysitter the day before saying a family emergency will prevent her from watching your children.

Lawsuit mediations can get drawn out, seem overwhelming, be frustrating to schedule and even more frustrating to reschedule. But in those instances, and in any of the other instances where real-world meetings would be impractical, the internet can be a wonderful thing.

Call it an accommodation of the changing digital times. Call it the less-committed approach to ending a disagreement as quickly as possible. Call it nothing more than a shell of the real deal or a way to remove counterproductive emotions from negotiations, but online dispute resolution has gone from fringe to mainstream with clients increasingly asking neutrals to coordinate a chat window instead of a conference room.

But no matter how you characterize one of the newest developments in dispute resolution, choosing between online and traditional face-to-face mediation presents benefits and drawbacks that makes either option the right one under certain circumstances.

Setting the stage

Faustin “Frosty” Pipal of Resolute Systems has been mediating cases since the early 1990s. He’s concerned talks in a group chat app won’t create the flexible, collaborative and, yes, creative environment and solutions in-person mediation does.

“I’ve seen pledges to a foundation. I’ve seen the idea that a little monument would be built to honor a young boy. I’ve seen prayers together to resolve matters,” he said. “Mediation really is a dynamic, very human process that takes into account emotions, feelings and attitudes and it’s often with magical results. You can do things in mediation that you can’t do in court and you certainly couldn’t do in the online model.”

Setting a cooperative tone that allows mediating parties to successfully negotiate can rely on something as small as parties’ seating arrangements, retired Illinois Appellate Court justice Bill Taylor said. And that’s something he said neutrals learn in mediation class.

“The way you place the parties at the table helps in terms of a successful settlement,” said Taylor, of Mediation by Judges. “If you put an attorney close to you and the other attorney is at the far end of the table, that creates conflict.”

The popularity and adoption of alternative dispute resolution systems such as case mediation began around the 1960s and 1970s as a way to skirt what was considered — even then — an expensive, slow and bogged-down court system.

It came to provide an avenue for litigants to take a less formal route to resolving their issues. A former judge mediating a case wouldn’t be wearing a robe or sitting on a bench, for example, and a private office setting can help parties feel more comfortable than they might otherwise feel in a courtroom.

But those are only nuances to consider before anyone starts talking particulars. Once parties start discussing substance and issues, there’s a whole host of nonverbal cues and voice tones that mediators can pick up on to help guide their meeting.

“It’s the body language, the eyes, the way they shift in their chair,” Taylor said. “I can pick up little hints on whether they’re open to settling or whether they’re just seeking information.”

It’s word choice too, said William Haddad, a retired judge who works as a mediator with ADR Systems.

“‘Exposure’ goes over better with defendants than ‘liability’ and ‘blame,’” he said. “There’s some diplomacy in the words you say to people.”

And it’s those types of discussions that really allow a party, usually the plaintiff, to feel like he or she is “getting their day in court,” Pipal said.

The plaintiffs more often feel that way because they’re largely the parties who are unfamiliar with the litigation process, Pipal said. They enter mediation wanting someone to hear their story.

“And the mediator is the human being who can listen, and listen with a great deal of skill,” he said.

In the context that mediation serves as a means for people to reach and obey their own resolution, Pipal said mediation allows parties the flexibility to settle their differences outside the purview of dollars and cents.

The pros of distance

The emotion mediators have to cut through most often is anger, and there’s often a lot of it.

Online mediation comes in handy in those kinds of high-tension and high-anger circumstances. Although the parties are airing their grievances in front of a computer screen instead of one another, retired judge Susan Zwick of JAMS said the screen can act as a buffer between what each side reads and how they respond.

“It gives me a chance to slow down how angry they are. They have time to think about it, and they’re looking at their screen and they’re not getting angry because they’re in problem-solving mode,” she said. “That is the biggest pro in online mediation — get everyone on problem-solving mode first and fast.”

Zwick has worked for the past two years as a Federal Emergency Management Agency neutral mediating Hurricane Sandy claims. She said online mediation can also benefit matters like that, where parties are located, here or across the county.

The process also works in narrowing matters to their most important issues, she said, and the flexibility that comes with the parties’ ability to enter a mediation chat room from any internet connection can help in navigating difficult schedules.

But regardless of online mediation’s benefits, Zwick said, mediating a case online is largely just an operational shift. It’s built on the same foundation of communication skills neutrals are trained to employ when working face-to-face.

It’s a shift that allows neutrals to reach and connect with incoming generations of legal community members who are simply more comfortable engaging through electronics, she said.

“I find that just the way that my generation was very comfortable talking on the phone for hours on end, the newer generation is just as comfortable chatting on e-mail for hours on end,” she said. “If they are more confident using those mediums then I’m not going to dismiss an entire generation of people — professionals — because I can’t communicate to them through that medium. I’m going to find a way to make it work. They’re comfortable communicating this way, and my job is to communicate any way I can. And if it’s online mediation, then it’s online mediation.”

Online mediation can open both the neutrals’ and the parties’ availability because the two sides only have to agree to meet in the digital realm as opposed to a physical location. It also gives litigants a chance to look things over themselves, on their own devices, and reach out whenever a question or issue comes up.

That might mean receiving an e-mail or a text after hours, Zwick said, but it’s all a part of helping parties successfully resolve their case.

“You’re always on call, and if the job needs to get done, it can get done,” she said.

Dollars and sense

Many mediators, including ADR Systems’ Haddad, say online mediation can be highly effective if the only issue between opposing parties is just a matter of figuring dollars and cents. At that point, he said, the process is less of a full mediation and more a matter of “bidding” on the internet.

That can be the perfect fit for smaller claims, where the costs of litigating such a case would likely outweigh whatever recovery could come from it.

But for larger cases that have to weed through several legal issues, proximate cause, liability and larger numbers in damages, neutrals largely agree their ability to develop a personal relationship and tap into emotions and body language during face-to-face mediations becomes just as important as listening to what a party is saying.

“You need a mediator … who understands these issues and can see both sides of the case and bring the benefits and downsides of the cases to each side,” Haddad said.

Neutrals also say physical mediation is a known quantity in the sense that parties know the mediators they’re signing up for, as well as the wealth of institutional knowledge that comes with them, before ever stepping into their first meeting.

And that’s a comfort Haddad said he can’t imagine online mediation could ever provide.

“Having trust in the mediator where there’s some credibility in what the mediator has to say is extremely important when it comes to bringing arguments on each side,” he said. “Mediation is not telemarketing. It’s a personal exercise.”

Searching for online mediation companies on the internet will reveal advertisements for all different kinds of companies that purport to offer excellent mediation services. Some cater to disagreements in a particular area of law. Others don’t. But all of them claim they can offer quick and efficient cyber-settlement service.

“Is it out there? Oh yeah it’s out there — the same way that, unfortunately, dial-an-attorney is out there,” Zwick said.

She’s concerned businesses and mediators who market themselves as quick-fix neutrals seem to leave their true effectiveness an open-ended question.

“You can’t just slap a Band-Aid on it, and you’re not doing anyone any help by saying ‘Oh, I can fix that for you,’” she said. “If the solution was going to come from a judge, we’d be in litigation.”

Rules and regulations

Largely, said retired judge Russell Hartigan, who mediates through Resolute Systems, the practice of mediating a case online seems less like a new hole in the dispute-resolution market and more like an opportunity for the area’s mediation firms to make rules and take the process under their operational wing.

The main hurdles he said he sees the companies facing concern its methodology — issues like how to set up meetings, arrange for mediation submissions and figure out billing.

And although there is no Supreme Court rules or Illinois policy that directly addresses online mediation, Hartigan said it’s an area he anticipates the Illinois Supreme Court will provide guidance on as the practice grows more popular in the state.

However, Mediation by Judges’ Taylor said it will likely first take creating an operational and business model that has proven to work before the state’s high court will adopt any kinds of guidance on it.

“It will sort of have to take a life of its own and be established,” he said. “That’s the way our courts and our legislature has been operating lately.”

However, in the context that settlements are agreements between two parties, Zwick said she doesn’t necessarily see an opening where a new rule or policy could dictate how and why two private parties reach an agreement through online mediation.

“I honestly don’t see how any law could force or could detail or give a structure to that because an agreement is an agreement. It’s a private contract,” she said. “I don’t think it’s ever going to replace mediation, but I think that it’s definitely going to be a major push because it narrows issues, and because it actually solves the problem.”

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