There have been a few breakthroughs in this century that have changed the course of our lives. Consider the automobile. It allowed us to travel from place to place faster, opening up many new opportunities for learning and growth. The telephone was another breakthrough. We could now communicate in an instant with our friends, neighbors and business associates wherever they were at any time. How about television and radio? Now we see information being transmitted in an entertaining and immediate manner. Get the picture?
Is it always in our best interest to apply these technological breakthroughs in every environment of our lives? For example, would it make sense for car manufacturers to install televisions in every car that comes off the assembly line? How about putting televisions in workplace cubicles of the Dilberts of the world? Some might say these applications are good things for society, others might argue that they are destructive and inappropriate.
Consider the latest and perhaps most notable discovery of this century, the microchip. This little Pacman-like object needs constant nourishment to survive, stopping off at various industries to snack on whatever needs improvement. On the way, the little bugger serves notice that we better use it or else there will be consequences to our personal fortunes.
What are we as an ADR community going to do with this little creature? As we look into the crystal ball of the future, does it make sense to bring the microchip into the mediation room, or will it be more of a hindrance than a useful tool to help mediators solve problems?
At this point in the development of digital technology, the computers are way ahead of the mediators and lawyers. Though the computer can do lots of interesting things such as putting someone’s face on the screen at the same time we are asking probing questions, the marketplace hasn’t shown enough interest in the technology to encourage the microchip handlers to promote these tools to lawyers on a mass scale. They would rather have us focus on the simple things the chip can do, such as word processing.
At the same time, the mediation community is training people in skills and techniques in person to person communication – – – active listening, questioning and facilitating negotiations which occur spontaneously. This requires warm bodies to work with, not a computer screen. The mediation community might argue that body language and other non-verbal techniques are critical to the success of a mediation, and cannot be achieved through computers.
Others might say that we cannot use computers to mediate because of the fear that confidential communications might never be secure. While that certainly is a consideration, has anybody ever wondered whether a tape device might be secretly planted in a mediation conference room? Or whether a phone that a mediator is using to speak privately with a party has been tapped? While I do not subscribe to this type of paranoia, the same response would hold true for computers.
Either we embrace the digital technology in ADR practice or we don’t. If we do embrace the technology, how can it be effective to help a mediator sort through a litigated case?
I propose that many clients are truly interested in achieving closure in the most cost effective, efficient manner available. That might require substantial litigation with its commensurate costs, or it might just involve a little creativity on the part of the attorney. Assuming the client wants an early resolution to the dispute out of court, and the principals are located in different parts of the country, would it not make sense to have the mediator use whatever technology is available to communicate and help solve the case? Certainly the telephone might be a first choice. Asking the attorneys to submit position statements over the Internet would also be considered. After preliminary information is exchanged, it would be valuable to allow the mediator to converse with the parties privately, as in caucus, through either electronic mail or the instant messenger system currently available on America Online. For the cost of a local phone call, a tremendous amount of communication takes place and allows the mediator to diagnose the problem and come up with suggested approaches to solving the case.
FIRST THINGS FIRST
The first step in the online process is to send the parties a mediation agreement which should include not only the standard confidentiality language, but specific rules about responding to email, including: (1) that all communications shall go through the mediator and not to communicate with each other without permission from the mediator; (2) that the mediator shall be notified of all times when a party will be away from the computer for more than 24 hours.
THE POSITION STATEMENTS
Next, ask all parties to submit to you a brief, confidential position statement which you will use to analyze the issues and set an agenda. This is the first critical piece of information in the case for the mediator and sets the tone for the rest of the online mediation. Based on the position statements, your job is to come up with a concise, balanced summary of the dispute. This is quite difficult because you will be tempted to lean toward one side or the other. Your statement should be accompanied by an agenda of issues. You then ask each side to approve your statement of the case and agenda. They have the right to make comments or changes. This might require some back and forth communication until you arrive at a frame for the case to which both sides agree. The success of getting both sides to agree on the statement and agenda is the key to unlocking the dispute.
SELECT YOUR STYLE
I have found that in cases where the mediation is being conducted strictly through email (not teleconferencing), it is critical to be extremely facilitative, defining the issues in a narrow sense and focusing primarily on the legal issues. This initial approach gathers the most information for the mediator and helps the parties feel comfortable. Under no circumstances would it be useful to yield to the temptation to give an advisory opinion or predict the outcome too soon, or you may lose one or more of the parties.
At this stage, gathering information requires thoughtful, articulate questions which allow the parties time to carefully analyze their responses. Indeed, the mediator must be especially skilled and knowledgeable in the area of law in which the parties are operating, since the personal dynamics usually available in an “in person” mediation are not be available. As a result, the mediator must follow up each answer with a more in depth question which reflects both the mediator’s knowledge of the law and a sense of understanding or compassion about the parties’ positions. At the same time, it is important to help the parties become realistic about their chances of success by asking the tough questions.
During this ongoing stage, there will be opportunities to learn more about the driving forces behind the positions taken by the parties. Though it is useful to learn about those forces and they could assist in crafting an ultimate settlement, it is easy to get off track with matters that might not be relevant to the dispute and will not help you reach agreement. Be careful as you drift into this area but don’t be afraid to test the waters. The goal is to ask questions that lead to a common goal, and then to float trial balloons that might be used later in the mediation as the subject of a proposal.
As you begin to synthesize and understand the information that you have gathered, the case will start to turn on an issue or two which will become readily apparent after a short period of asking questions. As the issues start to unfold, one approach I have used successfully is to ask the parties the following questions:
- Where do you think you disagree most strongly?
- In those areas where you disagree, is there any objective criteria you can suggest to develop a fair and constructive voluntary resolution?
- From your perspective, what important understandings did you think you had when you originally got involved with the other party? (Time, money, allocation of risk, division of responsibilities, rights and duties, etc).
- What important shifts in these understandings happened as the situation developed, and where do you think their perspective differs from yours?
- In areas where you have sharply different perspectives, what evidence could you present that would be credible to the other party to help them see your view? (Written industry standards, notes, witnesses, etc).
- What criteria will you use to determine when an agreement proposed in this case is “fair?”
- How do you think the other party realistically views their chances of success in this case?
- What do you think the other party views as a fair outcome in this case for both sides?
These questions can be asked all at once or at strategic intervals depending on the progress of the case. The goal is to keep the conversation moving forward and to search for clues so that you can begin to develop a proposal for settlement.
THE NEUTRAL EVALUATION
At this point, the parties will be looking to the mediator for direction and leadership. Your role as a facilitative mediator is over. It’s time to become evaluative and to ask each side if they would permit you to make a neutral recommendation to which each party can confidentially respond. Tell them that if both parties agree with the recommendation, you have a deal. If not, you continue the process. Parties can feel comfortable agreeing with part or all of the recommendation. The evaluation should be specific and supported extensively with facts and law if applicable. The timing of this recommendation is important because it has to be done only after the parties have total confidence in the mediator, and at a moment in the process where there is a sense of not wanting to lose the opportunity to settle.
Life is sometimes difficult, particularly in the civil justice system, and the process of confronting and solving litigated problems is not always perfect. As lawyers, we have an obligation to the client to look for tools that will aid us in achieving the client’s goals. A good mediator with a willingness to explore the use of digital communication in a case where the parties are geographically challenged could provide the key that unlocks the dispute.
This article appeared in the Fall 1998 Dispute Resolution magazine of the American Bar Association.