Online dispute resolution ("ODR") has opened a gateway through what were once perceived as impossible socio-economic barriers; however, even with all that ODR has done for equal access-to-justice in community-based mediations, mediators cannot crossover into ODR without a comprehensive understanding of ODR's barriers. ODR can be a tool for replicating in-person court processes, but it also renders an opportunity to reimagine how we might perform certain processes better.
Recognizing the Limitations of Online Dispute Resolution
Prior to the pandemic, most community-based mediations took place in a central location within the local courthouse or community mediation center where mediators could exercise authority over the safety and confidentiality of the environment; however, since 2020, almost all community-based mediations occur virtually. And while this has allowed those individuals dealing with housing and/or income inequality equal access to conflict dispute resolution services, it has limited what we as mediators can see and perceive. Now, the only thing we see is what we are allowed to see on our screens, which typically involves being able to view those involved from the waist or shoulders up.
What we can't see is what or who might be behind their monitors, who might have pulled up in their driveway or whose listening on the other side of that wall. What social media post might they be creating or reading under the desk or perhaps like a lot of us, what other proceeding or communication are they engage in on another screen? As mediators, we are no longer able to exercise authority to ensure a closed, private, and safe environment. Counsel can appear in multiple hearings and mediation proceedings at the same time. Parties can communicate with one another through text messaging, social media, email or through a host of other means to intrude or even intimidate one another, all without our knowledge.
Overcoming the Limitations of Online Dispute Resolution
While we may not be able to ensure that all parties comply with the rules of mediation in the virtual setting, we can ensure the features of the online platform are secured and safe by implementing mechanisms and processes that mitigate these limitations. Creating waiting rooms and breakout rooms, disabling private chats, recording capabilities, microphones and video functions, emphasizes the requirements of confidentiality and good faith, and we as mediators can direct communications such that diplomacy and civility rule, holding parties and counsel accountable to the rules of mediation when necessary.
Overall, if navigated properly, ODR can be just as effective as traditional mediation techniques in effectively addressing conflict, rising case volumes and tightening budgets while also expanding equal access-to-justice for populations that might not have ready access to courthouses. Parties often find it to be a low-stress process that fosters trust and communication resulting in positive outcomes. ODR could - and should - be used to remove access-to-justice socio-economic barriers, but the potential barriers regarding safety, confidentiality and engagement also need to be addressed.