A Working Paper for the
NCAIR Conference on On-Line Dispute Resolution
Washington, DC, May 22, 1996
Richard S. Granat
Director, On-Line Mediation Project
The Center for Law Practice Technology at the
University of Maryland School of Law
For additional information or comments contact:
rgranatn@counsel.com
The Case for On-Line Mediation
The Potential Problems with On-Line Mediation
The Potential Advantages of On-Line Mediation
Building the Mediation Room in Cyberspace
I first thought about titling this paper "Why On-Line Mediation?"
because there is still disagreement among some practitioners about
the effectiveness of using traditional mediation to settle disputes.
In Maryland, the state where I practice and teach, and the locus
for this experiment, family law litigators, for example, lobbied
in the last legislative session, to limit court referred mediation
and to limit the right of non-lawyers to mediate disputes in family
law matters. The idea of mediating domestic disputes in cyberspace
will seem to many Maryland family lawyers a strange idea and even
less workable than face-to-face mediation.
Nevertheless, we believe that there are advantages to mediating certain types of disputes on-line, and we hope to demonstrate that mediating family and health disputes on-line will facilitate agreement between the parties, cost less than traditional mediation, particularly when the parties are separated by distance and, in the case of domestic conflicts, create a foundation for future conflict resolution after the divorce is final. We believe that there is a market for on-line dispute settlement and have this faith, perhaps naïvely, that if we build it, they (the customers) will come.
Our approach to testing the efficacy of on-line mediation is particularistic in the sense that the proposed service is limited to two types of disputes: domestic disputes such as custody, visitation, child support and property division; and health care disputes between either consumers and insurance companies, or consumers and health care device manufacturers. Only cases that arise in Maryland under Maryland law will be selected for mediation. This paper discusses our approach to family law disputes because our planning is much further along with respect to this category of conflict, than the health care disputes, and the family dispute mediation component of the project will be operational before the health care component.
The first section of this paper discusses the nature of domestic
disputes, their suitability for mediation generally, and on-line
mediation in particular, and our hypotheses concerning the advantages
of on-line mediation over face-to-face mediation. The second section
of the paper discusses our approach to creating the on-line environment
in which on-line mediation will take place.
The Mediation Process
First, some definitions. Mediation is an informal process whereby
two parties with or without their attorneys, sit down with an
independent third person, known as a mediator. The mediator acts
as a facilitator to help the parties focus on the issues and provides
reasonable and acceptable solutions to both sides. Unlike an arbitrator
or a judge, the mediator cannot impose a solution on either side.
In mediation, a neutral third party conducts a process toward
resolving the conflict between the parties that satisfies each
parties interest. Through a process of communication, each party
reaches a decision that satisfies both. Mediation also can be
used to set up a system for settling future conflicts.
Unlike arbitration and litigation where the dispute is settled
based upon rights, or negotiation, which is often based on power,
mediation is based on finding out if the parties' interest can
be broadened so that there is a basis for agreement. Mediation
focuses the parties agreements on common interests, rather than
legal rights, or the balance of power in the relationship. If
the parties reach a solution it will be based on the agreement
of the parties. If and when agreement is reached, it will be reduced
to writing.
In Maryland, divorce mediation is designed to create an agreement
between the spouses specifying responsibility for children, spousal
support, and property division. The mediator doesn't make decisions
for the parties or advise the parties what they should or should
not on any issue. The mediator does not give legal advice, although
often the mediator will provide basic legal information.
In 1988, the Court of Appeals of Maryland formally adopted Rule S73A, which provides that after consultation with counsel, Maryland courts may enter an order requiring the parties to attempt mediation in any proceeding in which custody or visitation appears to be in dispute and in which the court finds mediation appropriate. These court-ordered mediations are known in Maryland as public mediations. As a matter of course, all disputes involving custody and visitation are referred to mediation, except where domestic violence has been an issue. Only represented parties are referred to mediation. Private mediations deal with the entire range of domestic issues. Since more than 50% of filings in the Maryland Court system relate to domestic issues, the Maryland judiciary favors dispute settlement by mediation and negotiation, rather than litigation. Mediation has proved to have several advantages over litigation., It is generally quicker and much less expensive than a trial. Mediation also gives the parties an opportunity to control the resolution the cases, since the goal of mediation is that both parties will be satisfied with result. The basis for a solution may be more creative than one that could be framed in the context of a law suit. The parties may agree to so something that would be impossible as a legal solution, but would be beneficial and acceptable to both parties.
There are several aspects of family law disputes that make them
particularly appropriate for mediation.
In domestic disputes, financial issues are subordinate to emotional
issues, and may not be a factor at all in a dispute. There is
no jury in family law cases, although there may be intensive conflict
over issues of fact. Discovery is less a matter of gamesmanship,
since each party is under a good faith obligation to disclose
to the other all of their assets and liabilities.
Family domestic disputes lend themselves to a settlement process
on an issue by issue basis rather the an overall resolution, because
there many parenting issues that do not directly involves finances.
Practically and psychologically, a family law mediation is the
ideal setting to make progress in settling a case one issue at
a time.
Effective Mediators
Effective mediators help the parties find a negotiated solution,
by listening to the parties, helping the parties re-evaluate their
interests in each position, and re-framing the parties position
from an "I win, you lose" situation to an "I win,
you win" situation. Mediators identify the issues in disputes
and break disputes down into particlar issues that can be separately
resolved. They perform a valuable service by managing the communication
process so that everyone has an opportunity to express their views;
keeping the discussion focused on the issues; and restating each
party's points to the other party to make sure that each party
understands the other's views. Another important service is tying
down agreements on issues where the parties do agree, as well
as proposing alternative settlements that move the discussion
forward. The primary goal in many domestic mediations is the future
welfare of the children of the marriage. The mediator must make
sure than neither party uses the children to secure negotiating
advantages over the other party.
In real life, power, interests, and rights overlap. While resolution
of domestic disputes emphasizes resolution and a balancing of
interests, the governing body of family law is still in factor
in mediation. The effective mediator makes sure that each party
understands what each parties' rights and obligation are under
the law, and when the law is not clear, the effective mediator
will identify the lack of an answer and let the parties each decide
whether the interest at stake is so great as to justify a court determination.
When a couple separates, the conflicts that existed below the
surface of the relationship -in areas such as finances, child-rearing,
and the ordering of priorities around agreed upon values- often
harden into irreconcilable conflicts. It is the task of the mediator
to get the parties to communicate with each other again, to enable
the parties to move on with their lives, and when children are
present, make arrangements for the future welfare of the children.
As the parties' relationship disintegrates, conflict escalates
when one party fails to understand what law applies to their dispute
or interprets the facts in such as way so as to prevent an agreement
that is consistent with the long term goals of both parties. In
adversarial situations, the inability to communicate results in
lawyers promoting different views of the law and the facts. These
lawyer-advocated positions are usually magically settled immediately
prior to trial when the parties have exhausted their financial
resources on legal fees. An effective mediator is able to change
this cycle of communication by getting the parties to focus on
the future impact of their decisions on their children, the financial
cost of not reaching agreement, and the practical consequences
of reaching a solution rather than facing protected litigation
or adversarial negotiation over which they have little control.
The mediator is a consultant who is an expert at facilitating this of communication. If there is an imbalance of power which makes this impossible it is the mediator's responsibility to either recommend termination of the mediation, or take steps to redress the imbalance of power so as to avoid an unfair result. The mediator needs to have skills which are not dissimilar from those possessed by an effective marriage counselor, except where a marriage counselor attempts to preserve the relationship by improving the communication patterns of the parties, the mediator presides over the dissolution of the marriage and equitable resolution of child support, custody and visitation, property dissolution and spousal support issues.
A key quality of effective mediators is the ability
to listen carefully to each party, building sufficient trust between
the parties and herself, so that the parties will listen to the
mediator's proposals for alternative agreements and a re-framing
of the issues in terms of the long term goals of the couple. Unless
the parties are able to listen to the mediator, the communication
process remains frozen and no agreement is reached. Traditionally
the mediator uses a variety of techniques to build trust between
herself and the parties and between the parties themselves. These
techniques involve agenda setting and management, guiding the
discussion, enforcing rules which norms which encourage respectful
communications between the parties, and observing body language
and inflections of tone and voice which provide clues to the degree
of rapport and mistrust between the parties or their willingness
to reach agreement on the issues.
The central question to be explored in this project is whether
the absence of face-to-face interaction helps or hinders this communication
process. Is there something about electronic communication that
enhances the communication process, particularly in the context
of these types of cases. We think there is.
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There are obvious problems to any kind of mediation, and some which are particular to on-line mediation.
First, in the selection of
cases, one has to control for power imbalances in mediation. In
divorce mediation in particular, theoretical work in this areas
(Coogler, Structured Mediation in Divorce Settlement (1978),
it has been demonstrated that divorce mediation works best where
either the two parties are competitive or conditionally cooperative.
Situations where one party is competitive and the other is unconditionally
cooperative are not candidates for mediation, whether on-line
or in person, because of power imbalance.
Recent research on gender imbalance in family mediation between
males and females could become even more exaggerated in an on-line
context. To the extent that males are more comfortable in utilizing
computer technology they would have a theoretical advantage over
females who are less experienced in utilizing on-line resources.
However, gender imbalance, and experience in utilizing on-line
resources is likely to be less of an issue in mediating the health
care disputes which would provide a basis for comparison with
domestic disputes.
Second, access to on-line resources is an issue, at least at this
stage of our society's development of the "information superhighway."
Presently, only a relatively small percentage of the total population
have access to, and regularly use the Internet. Recent statistics
reveal that the dominant group of Web users are 77 percent male;
only 23 percent are female. This group tends to be highly educated.
Ninety-seven percent of this group has more than two years of
college education, and work in technicians, engineers or as professors
are in the top three occupational categories. It could be argued
that whatever the sample of cases selected for this project, it
is not representative of the general population and that it is
too early in the development of the "information superhighway"
to consider on-line mediation a practical alternative.
However, education is the key to Internet participation. The more educated segment of the population will have access to the Internet and become frequent users than any other group. The group of users who have Internet access is growing at an exponential rate, with some forecasters estimating that 35% of the U.S,. population will have access to on-line resources by the year 2000.
Finally, people are most comfortable in face to face contact which provides a richness of cues and information. Body language, tonal variations, pauses, all become part of the conversation. We also like to know as much as we can about the people with whom we are interacting. We want to know their age, gender, ethnicity, how they dress or wear their hair. We relate to people in the context of this information; we don't know whether trust between mediator and the particpants can be developed as quickly in an on-line context, rather than a face-to face environment. Yet one can argue that this distance from the real world can be a virtue instead of a vice. Because the computer screen separates the parties, they can't focus on each other's presence. They are forced to focus on the substantive issues on the screen. The requirement that the parties focus on the substantive issues may in fact correct the gender imbalance that often exists in face-to-face mediations in divorce issues where the dysfunctional dynamics of the couple's relationship are reproduced in the mediation room and interfere with the parties ability to reach an agreement.
The idea that electronic communications can be a valuable device
for enhancing the capacity of the parties to communicate with
each other is untested. The experience that is most similar to
on-line mediation is mediation by telephone. We have found no
studies that supports or contradicts the idea that telephone mediation
is superior to face-to-face mediation. The anecdotal data that
we have been able to collect from discussions with family law
mediators about their experience in mediation by telephone is
that the physical and psychological distance created by the telephone
reduces the amount of emotional hostility between the parties.
The result is that agreement is reached in less time and the parties
are not only satisfied with the result but continue to relate
to each other by telephone rather than face-to-face. However,
telephone mediation almost always involves parties who live at
a distance from each other, which makes it costly to come together
for a face-to-face mediation. This distance might be an incentive
to reach an agreement in order to put their marriages behind them
and move on with their lives. The cases that we plan to select
for this project will not all involve a distant relationship.
We are interested in exploring the question of whether on-line
mediation by itself can reduce the emotional temperature of the
parties, independent of the fact that they may be living in the
same city or community. We theorize that the advantages to on-line
mediation, even for parties who live in close geographical proximity,
include:
The advantages of cost effectiveness, the opportunity to undertake
thoughtful discussions without the time pressure of an immediate
confrontation, convenient access to other expert resources to
provide illumination and understanding to resolving conflicts,
and the capacity of the mediators to carefully document each stage
of negotiation suggests that on-line mediation could evolve as
an important venue for the future resolution of certain types
of conflicts.
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II. - The Architecture Of
On-Line
Mediation: Building The Mediation Room In
Cyberspace
We plan to build a "space" in which mediation will take
place that is easy to use; accessible to anyone that has access
to the Internet and the World Wide Web; and that provides a variety
of "tools" that enhances communication in ways that
are not possible in traditional face-to-face mediation.
Our approach to project design is to create a service on the Internet
that is attractive, interesting, user-friendly and cost-effective
for its participants. The "mediation room" will consist
of the following components:
The On-Line Mediation Web Site
This web site will be the gateway to the mediation service. It
will advertise the availability of the service on the World Wide
Web; contain information about the process for prospective parties;
collect contact information from prospects in order to assess
the suitability for participation in the project; contain mediation
rules, a copy of the agreement to mediate; information about the
backgrounds of the mediators; and a copy of the mediation handbook.
A Legal Information Web Site
In each category of dispute there will be a web site that contains
substantive legal information. Work is already underway to create
a Maryland Family Law Information Center, which is supported by
a separate grant to the Law School. This web site will contain
general discussions of Maryland family law, supported by visual
enhancements and graphics; sample forms and instructions for pro
se litigants, and tools, such as a child support calculator
and judicial standards for alimony and spousal support awards.
Flow charts and graphics will be used to explain complex legal
concepts. The generalized discussion will also be annotated with
case and statutory references, and there will be links to other
sites that provide information on a variety of family law issues.
Easy access to cases and other legal materials can be used by
the parties to support arguments and clarify their negotiating
positions. A similar web site will be created to support health-related
mediations.
A Reference Librarian and Help Desk
The legal web sites will be supported by a staff person with expertise
in the underlying substantive law. This person will be able to
guide the parties to relevant legal materials in the web site,
but will refrain for providing actual legal advice. Another staff
person will also provide technical assistance, either by telephone
or by e-mail, to help the parties and the mediator utilize the
software programs and master any technical barriers that might
detract from the mediation itself.
Multi-Threaded Discussion Group Capability
Another component will be the use of multi-threaded discussion group
software as a mechanism for structuring lines of arguments between
the parties, and providing the primary vehicle for the mediator
to facilitate discussion and negotiation between the parties.
The software to be used to support this function is a new program
developed by a company called net.Genesis that enables a web site
administrator to create multi-threaded discussion groups off of
a web-site. The discussion software can be used to set the agenda
for dispute settlement, organize the parties comments around particular
issues, and provide a permanent archive of the mediation discussions
and the agreements that have been reached.
E-MAIL
E-Mail will be used by the mediator to communicate with each of
the parties and will enable each of the parties to consult with
the mediator as they shaped their negotiating positions. E-mail
between the mediator and each of the parties will provide a means
to simulate the kind of shuttle diplomacy mediation that some
mediators find to be very effective. All filings of exhibits and
documents will also be conducted by E-Mail.
Internet Relay Chat (IRC)
Internet Relay Chat can be used to conduct simultaneous discussions
between the parties and the mediator as if all the participants
were in the same room. Like a telephone conference call, IRC supports
real-time conversations and communications. The new version of
Netscape's web browser, (Atlas), will support real-time chat capability
and well as real-time voice communications. The chat client also
supports a white-board functionality which would enable the mediator
to either post a document for both parties to discuss simultaneously
in real-time, or diagram a concept or a set of issues that both
parties can relate to and respond to in real-time. Each mediation
room can have its mediator, agenda, moderator, "action"
list, and password-protected security. The Mediator can invite
a party to a own private room for a one-to-one chat which is totally
secure from the other party.
Video Tele-conferencing
We are exploring the use of video-teleconferencing utilizing the
Connectix video camera. The Connectix camera costs $100 and transmits
a video signal over a regular telephone line. Enabling desk-top
video-conferencing would allow the mediator to see each of the
parties and for each of the parties to see each other. Since the
capacity to see each other may change the nature of the communication
from a purely text-based communication medium to one enhanced
by the capacity to observe the other party in real-time, we are
considering creating two tests groups, one that has access to
video, and one that does not.
Document Assembly Tools
The outcome of the mediation will be a settlement agreement. The
mediator should be able to cut and paste a settlement agreement
together from clauses that have been negotiated by the parties.
Each thread of the discussion will deal with a substantive issue
that gets resolved by re-framing the conflict into agreed upon
language that gets incorporated into a settlement agreement. The
mediator will draft the settlement agreement. The resulting agreement-the
product of the mediation-can be E-mailed to the parties' respective
counsel for advice and evaluation prior to execution.
Electronic Settlement Agreements in Family Law
The outcome of a successful mediation of a domestic dispute is
a Marital Settlement Agreement, or an amendment to an existing
agreement. In a domestic conflict the parties often have a continuing
relationship one another. This is particularly true of negotiated
custody and child support agreements. Unlike paper contracts,
electronic contracts and agreements can provide a mechanism for
monitoring obligations entered into as part of the agreement.
As Ethan Katsh has written in Law in a Digital World (1995,
Oxford University Press), p. 125:
By providing a new link between the parties, the dynamic contract becomes something that can contract can contain warnings, alarms, notes from one party to another. This kind of contract can overcome many different kinds of boundaries, for example, limit contracts to what appears among the clauses of the contract. Whereas, under some circumstances one might want everything to be contained in a hypertextual document, referring to and linking other sources of information more easily than can something on paper. The contract can respond not only to the parties but to changing conditions of some kind and then inform the parties of these new events or conditions. The electronic contract, in other words, connects the parties to each other and, if desired, to other people and to other sources of information in ways that are difficult to imagine with paper.
For example, child support obligations in Maryland may be changed
when either the parties experience a change in financial circumstances,
or the statutory table of required child support payments changes.
As part of this Project, we could explore the archiving of the
Settlement Agreement in electronic form on the Project server.
The Settlement Agreement could require that the party paying child
support to notify the server by E-Mail of any material change
in the party's financial condition. If there is a change, calculation
software residing in the server would recalculate the child support
obligation based on the change in facts, and notify both parties
that the child support payment is automatically being adjusted
accordingly. If the child support payment is being automatically
deducted from the payer's payroll check, the notice would automatically
generate the necessary notices and filings to the Maryland Child
Support Protection Agency to modify the child support withholding
order. Similarly, if the statutory requirements change, both parties
could be notified of the change, and the requirement in the agreement
modified accordingly.
A child custody agreement in electronic form could also provide
for a more robust exchange of information electronically as a
means of keeping one parent informed about the child or children
by the other parent, without the emotional drawbacks of direct
oral communication. Indeed, we are hopeful that once the parties
experience the benefits of on-line mediation they will be able
to maintain their relationship electronically and that this will
facilitate continuing communication as long as it is required
by the agreement.
Hosting The On-Line Mediation Service
We are planning to host the mediation service on the web server that
will house the Maryland Family Law Information Center Web Site.
This is a dedicated server which will be connected to the University
of Maryland's Internet backbone, and which will be accessible
to anyone at no cost. We will also be able to offer Internet access
to both the mediators and parties who do not already have Internet
access or an Internet account.
As we move into the implementation phase it occurs to us, that
"on-line mediation" space that we are creating, has
similar features to the electronic classroom, the electronic negotiation,
and the electronic meeting. All of these situations require a
software architecture enabling the parties to communicate more
effectively by transcending the constraints of time and space.
Long distance education on the Internet is growing rapidly, and
the group communication processes facilitated by groupware programs
such as Lotus Notes and Collabra Share have already demonstrated
their effectiveness in a variety of organizational settings. It
remains to be seen whether communication between parties involved
in intense conflict can be helped or hindered by a mediation process
conducted electronically.
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