Consider the latest and perhaps most notable discovery of this century, the microchip. This small object, similar to the fast-disappearing arcade game Pac-man, needs constant nourishment to survive, snacking on outdated electronics and gobbling up obsolete modes of communication. On the way, the device serves notice that we had better accept it or there will be consequences to our personal fortunes.
What is the dispute resolution community going to do with this little creature? Does it make sense to bring the microchip into the mediation room, or will it be more of a barrier than a useful tool to help mediators solve problems?
Conventional wisdom is that the best practice for solving legal disputes is to use “real time” methods such as talking on the phone or having people in the same room or office to conduct a settlement discussion. The system which the microchip has begun to nourish is “asynchronous” communication- not occurring at the same time. This type of communication can be done in many formats including email, website, chat or instant message.
There are advantages and disadvantages to moving into a non-real time environment. For example, consider the most obvious choice, Electronic Mail (Email). Information about a case can be exchanged and saved for historical purposes, in an instant. Disputants can easily search through their messages and recall case data which is not customarily as accessible in real time communications. This blessing can also be a curse in that things are often said in the heat of the litigation battlefield or the mediation conference room which one might not want documented or referenced in the future. A bigger problem which has not been thoroughly addressed in the online community is the protection afforded litigants through the confidentiality statutes. That protection might become blurred in an online environment.
Another choice might be to set up a web site where disputants can review notices about the case, deadlines, briefs and anything else the mediator believes might be useful in moving the case forward. The advantage of doing this in a multi-party case such as a construction defect matter with insurers around the country are enormous. No longer will the parties have to exchange reams of paper each time something remarkable happens in the case. Simply go to the website every day and find out what’s new or post something for others to know about. Expert reports can be accessed instantaneously by decision makers, photos of damage can be downloaded and deposition transcripts can be accessed, just to name a few. On the other hand, a web site for a small case involving two or three parties might be too inconvenient to be of any value to the parties.
It might make sense to blend the real time world with the non-real time world by utilizing the instant messenger technology available through AOL or www.icq.com. This allows parties to talk in real time through their computer screen in a chat environment. It’s like having a joint session in a conference room except voices are replaced with typing. The problem with this technology in resolving disputes is that it forces parties to think and react quickly, taking away the ability to reflect and consider options that might, in the end, be more meaningful to them.
At this point in the development of digital technology, the computers are way ahead of the mediators and lawyers. Although a computer has the capability of putting someone’s face on the screen at the same time mediators 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 for person to person communication, such as active listening, questioning and facilitating negotiations that occur spontaneously. Many believe these techniques require warm bodies, not a computer screen. Understanding body language and other nonverbal clues, say mediators, are critical to the success of a mediation, and cannot be achieved through computers.
Others might say computers don’t belong in mediation rooms because of the fear that confidential communications might never be secure. While that certainly is a consideration, the possibilities that a tape device might be secretly planted in a mediation conference room or a phone tapped are just as likely.
Most 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, out of court resolution, and the principals are located in different parts of the country, it makes sense to use whatever technology is available to communicate and help solve the case. For the price of a local phone call, a tremendous amount of communication can occur and allow the mediator to diagnose the problem and suggest solutions.
As the first step in the online process using email technology as the starting point, the mediator sends the parties an agreement that includes not only online specific confidentiality language, but also specific rules about responding to e-mail. The rules should include clauses stating that all communications shall go through the mediator and no communication between the parties is allowed without permission from the mediator, and that the mediator shall be notified when a party will be away from the computer for more than 24 hours.
Next, the mediator should ask all parties to submit a brief, confidential position statement that will be used 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, the mediator crafts a concise, balanced summary of the dispute. An agenda of issues should accompany the summary.
The mediator will then ask each side to approve the summary of the case and agenda. The parties have the right to make comments or changes. This might require some back and forth communication until a consensus is arrived at on the issues of the case to which both sides agree. The success of getting both sides to agree on the statement and agenda is an important element in unlocking the dispute.
In cases where the mediation is being conducted in an asynchronous method such as email (not teleconferencing), it is critical for the mediator 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. This is not the time for an advisory opinion or outcome prediction, because one or more of the parties might lose confidence in the process.
At this stage, gathering information requires thoughtful, articulate questions which allow the parties time to carefully analyze their responses. It helps if the mediator is knowledgeable about the area of law in which the parties are operating, since the personal dynamics usually available in an “in person” mediation are not available. The mediator often 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 for the mediator to help the parties become realistic about their chances of success by asking the tough questions.
This ongoing stage is also an opportunity to learn more about the driving forces behind the parties’ positions. Although it is useful to learn about those forces because could assist in crafting an ultimate settlement, it is easy to get off track with matters that might not be relevant and will not help reach agreement. The objective is to ask questions that lead to a common goal, and then to float trial theories that might be used later in the mediation as the subject of a proposed agreement.
As the mediator begins to synthesize and understand the information gathered, it becomes apparent that the case turns on an issue or two. This is the point to ask forceful questions that will define the crux of the disagreement and determine what resolution will be acceptable. For example, a mediator might ask in private email messages to each disputant what the other party views as a fair outcome for both sides. The response received via email might reveal a situation where the parties actually are in agreement at least in the same range about an issue such as the dollar value of a case.
Another approach might be to set up an electronic conference room where the mediator can post these questions in a more public forum where the disputants can respond openly to the line of questioning. This dynamic would be similar to a joint mediation session where the parties speak directly to each other, one at a time. A good example of software that is used to organize this type of environment is available at www.webboard.oreilly.com.
These questions, whether done through private email messages or in an electronic conference room setting, 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 the mediator can begin to develop a proposal for settlement. Sometimes the parties are in geographically different regions, for example an insurance claims person may be on the East Coast, while the claimant is on the West Coast. In this case, the mediator could consider setting up a joint session using teleconferencing techniques. This would allow all the parties to actual view each other and work together in real time, without having to spend money on travel. Obviously this addresses the concern of some that body language is important to the process.
At some point in the electronic communication, the parties will be looking to the mediator for a specific settlement recommendation which is supported by facts and law if applicable. The timing of this recommendation is meaningful if it is at a moment in the online process where the parties have completely exhausted all options and are not sure where the process is going. It allows for the parties to deliberate, like a judge or jury, before making a decision on how they would like to resolve their dispute. The heart of this online approach is to turn the control over the outcome of the dispute back to the parties, which, ironically, is the essence of mediation.
The process of confronting and solving litigated problems is not always perfect, particularly in the civil justice system. Since lawyers are under a continuing obligation to look for tools that will aid in achieving the client’s goals, ignoring the imposition of the microchip is like the physician who doesn’t use penicillin because he hasn’t had the time or inclination to learn about it’s ability to fight infection. The willingness of the legal community to explore the use of digital communication in a case where the parties are geographically challenged could provide the key that unlocks the dispute, as well as the shield against legal malpractice.