Ask most mediators and they will tell that ODR is not true mediation and is a threat to mediators. Why?
The three main reasons are:
1. Disagreement about what ODR means.
Mediators disagree about what ODR means and confuse the different types.
ODR 1 is the automated algorithm-based systems used by the likes of Google or eBay to resolve complaints. Parties input information. Algorithms process it and generate a settlement range without any human intervention from lawyers or mediators. If settlement can’t be reached in this first phase some form of human intervention is introduced.
ODR 2 is voice/telephone mediation or text/email mediation. Mediators are appointed and the parties talk without seeing each other. Sometimes telephone conference calls are used but usually the mediator talks separately to each party. These are synchronous mediations, ie conducted at the same time. Text based mediations via email are more often asynchronous. There is human invention but limited personal contact.
ODR 3 uses video conferencing on systems such as Skype or Zoom. Mediators are involved as with ODR 2. They can see the parties who can also see each other. Meetings and exchanges take place on screen much as in mediations in the flesh with both separate private and joint conversations.
I am going to talk about ODR 2 and ODR 3.
2. ODR is a denial of the true essence of mediation.
There are ideological debates over Mediation. ODR may settle disputes say the purists but it is not mediation. For true mediation the parties have to be physically present and ideally spend most of their time in joint meetings. Only then can the magic of mediation work.
Why? Mediation repairs relationships in a way that arbitration or litigation cannot. Behind every dispute there is a broken relationship that must be addressed and if at all possible rebuilt before there can be a resolution. Without this, only sticking plaster solutions will be achieved not lasting resolutions.
Resolution can only happen when people can express their feelings to each other and feel that they have been heard and acknowledged. Mediation allows people to do this in a way they would never be able to do at court or arbitrations. Venting is cathartic.
Mediators talk warmly about the healing power of an apology. Apologies given over the phone or on screen are never the same as ones given face-to-face and sealed with a handshake.
3. True communication is easier face-to-face.
When you are face-to-face you can use all five senses. Over the phone you can only hear each other. On a screen you can see people as well as hear them. But you can’t feel the warmth of the handshake, smell the fear and tension or taste the cake, which a party brings to the mediation as a peace offering. This limits one of a mediator’s main tasks: establishing rapport and mutual trust.
But so what ask the pragmatists?
We all increasingly interact online. You can discuss your most intimate medical problems online and receive advice from a doctor. What’s wrong with discussing your most intimate financial or personal problems online with a mediator? In both cases you want and receive advice. Video conferencing has been used for decades in business communication. Online is the new norm. Just ask any retailer.
Then there is the ODR paradox. Mediators do not like to hear this but many parties prefer online communication. They don’t want to be in the presence of their opponents. They hate each other. Parties fear embarrassment and humiliation if they are forced to meet. They feel more empowered if they are not in a strange venue feeling under pressure to stay. Online they feel more in control of the process knowing they can log off any time they like.
Not everybody welcomes self-disclosure. People often find it easier to talk about troubling matters to a complete stranger they meet on a plane and are never going to see again than to their closest friend. Others prefer to admit uncomfortable truths to someone who is not physically present. It’s less stressful.
People do express their emotions over the phone or on screen. Voices are raised and tears shed. In a recent online mediation – with one party on the phone and the other on Zoom – tears and anger were very evident in a dispute over lost photographs of great sentimental value on a computer hard drive that had been taken in for repair. The dispute had been going on for two years. All sorted out within two hours. No one had to travel or take time off work.
At the moment thanks in part to the EU inspired Alternative Dispute Resolution for Consumer Disputes, ODR is used mainly for lower value consumer complaints. But it can be used in any type of dispute. A five-day jury trial was due to start the next week over a complaint against the police that had been going on for 10 years. It settled in an afternoon’s ODR. The parties and their lawyers were all in different parts of the country.
Is ODR as good as in the flesh mediations?
Probably not. But it is good enough for many cases and always better than no mediation at all. Here is what one party to a mediation of her three-year dispute with her motor insurers said – she was on Zoom and they were on the phone.
‘It would have been better if they had actually shown up on the meeting! But at least it’s over and hopefully I can get the same money back for this car I had to get in a rush and get something suitable. I wouldn’t ever deal with them again and only wish I could warn others to keep away from them. Anyway it was lovely to meet you and I’m just glad it’s over despite being out of pocket by thousands.’
As mediators and representatives we can easily forget that what clients often really want is for it to be all over.
A marriage made in heaven? Perhaps not, but certainly a marriage of great convenience. Be brave. Try it.
Stephen Walker is the author of: FAQs for Mediators; Setting up in Business as a Mediator; Mediation Advocacy: Representing Clients in Mediation; and Mediation: An A-Z Guide.