Richard Clark writes on Online Dispute Resolution

Richard Clark joins as a member of Art Resolve
18 January 2021
Art Resolve’s Nicola Wallace to be guest speaker at Maastricht University for Masters developed jointly with Royal Academy
21 March 2022

Originally published on Richard Clark Mediation and can be accessed here.

Online Dispute Resolution (ODR) is not new – it was alive and well long before the Pandemic. However, like many areas of professional and commercial life, Covid-19 has greatly increased the use of virtual, online processes for the resolution of disputes, including major, high value commercial cases.

I have conducted many online mediations long before the start of the pandemic but I have seen a large increase in online work over the last few months and, having just completed another online mediation of a large, international, multi-party dispute, now seems a good time to offer a few thoughts and reflections which I hope may be of some help (and perhaps reassurance) to parties contemplating mediation but wondering if an online solution is suitable for the resolution of their dispute.

For those unfamiliar with ODR who may be sceptical as to whether it can ever be as good as ‘the real thing’, my basic message is that it absolutely can be just as good and is an effective mechanism for alternative dispute resolution. This view is strongly supported by academic research over many years. ODR has a number of advantages over conventional mediation, particularly around convenience, flexibility and efficiency, provided that a few basic requirements are in place. First, it is essential to ensure a safe and effective process with an online experience which, while inevitably different from an in-person mediation, is trusted by the parties as a fair and impartial forum with an experienced mediator facilitating effective discussion and helping the parties to see, understand and reframe the issues with a view to reaching a solution.

The most frequent questions I am asked are: is the technology good enough and whether the absence of a physical gathering changes the dynamics and nuances of the process. The answer to the first question is that the technology is generally good and works well. So far as the issue around loss of subtlety and nuance is concerned, my experience is that this is not nearly as significant as some parties may think. Of course, there is the obvious difference of virtual rather than physical presence but it is interesting how quickly the participants settle into the online process and their ‘virtual world’ for the mediation session. One great advantage of ODR is that the parties participate from their own space (often their homes) which creates an immediate sense of safety, control and familiarity and obviates the need to adjust to the often unfamiliar surroundings of a neutral venue. This also makes ODR a more efficient process as it removes the need for any of the participants to travel to a central venue; this is particularly beneficial for international mediations which can otherwise require multiple parties to fly to one location.

In replacing a physical venue with a virtual one, the mediator and the parties need to ensure they select the right platform for their requirements and that, whichever platform is used, the technology works and is understood by all participants. I have found all the main platforms (Zoom, Teams, Skype and Webex) work well but it is prudent to have a trial run a few days before the mediation to test the technology and ensure everyone is familiar with it.

The mediator also needs to ensure that all parties involved in the online mediation appreciate that some adjustments in approach and expectations are needed. These include encouraging the parties to be tolerant and forgiving of any technology issues (such as speech lag, echo or signal interruptions) but, in my experience, these are not common if the right platform is chosen and appropriate preparation has been undertaken. The mediator will also need to remind participants that non-verbal communication and body language such as eye movements, gestures and spacial positioning are all much less visible in an online environment. Parties often underestimate the importance of non-verbal communication in conventional mediation and so this distinction is a significant one. Similarly, the usual online meeting etiquette of not interrupting or jumping into conversations mid-sentence and muting when not speaking is even more important than in ordinary online meetings and conferences.

Another area which an experienced mediator will wish to highlight is online privacy and confidentiality. These matters are of course also relevant to in-person mediations but an online process raises some specific issues such as ensuring that each party is participating from a private space in his or her own home and is not being overheard by others or subject to interruptions, as well as making clear that no one should record the mediation session.

One additional, practical but important thought relates to breaks. It is essential that participants take regular breaks to avoid screen fatigue; we move our heads and bodies far less when looking at a fixed screen and this leads to muscle tension and fatigue much more quickly than is the case in a physical meeting. An online mediation also places considerable additional pressures on the mediator who is moving between virtual rooms throughout the day and needs to take regular breaks both to avoid fatigue and also to consolidate and calibrate his or her thoughts.

All these considerations are relatively easy to manage in a well-run ODR process and the objective of a good mediator should be to create an environment in which the parties effectively ‘forget’ the virtual, online nature of the mediation and focus on the substantive issues. My experience has been that this happens very quickly and naturally with participants (even those who have never experienced ODR before) rapidly adapting and settling into the online environment. The mediation then proceeds in much the same way as a conventional mediation process.

There are many interesting questions about how the exponential growth in ODR will develop. One obvious area is the irrelevancy of geography. Not only does ODR obviate the need for any parties to travel to a physical venue, it also enables mediators to span jurisdictional boundaries. Very few mediations, including major commercial disputes, require the mediator to have a highly technical and detailed knowledge of local laws – it is the legal, interpersonal and dispute resolution skills and abilities of the mediator in facilitating, evaluating and stimulating new thinking and solutions which are most important. It is entirely possible, for example, for a mediator based in the UK to mediate a dispute online which involves other common law jurisdictions. Some mediators would argue that they can mediate any dispute anywhere in the world, irrespective of the system of local law or jurisdiction involved. Online mediation certainly makes this practically and logistically possible. I recently mediated a dispute online with parties in the UK, Canada and the US where the underlying dispute was governed by Canadian law. The ODR process enabled this dispute to be mediated and settled at a fraction of the cost of a conventional, in-person mediation. This is a good example of the highly attractive value proposition of international ODR compared to in-person mediations.

These thoughts are designed merely to highlight some of the issues about which parties unfamiliar with online mediation may be concerned. This is not a technical or exhaustive guide and I am always happy to engage with any specific issues or questions which potential parties may wish to discuss.