ODR and Mediation
Online Dispute Resolution (ODR) is not new, the concept has been around for over a decade and it has been put to use, in terms of consumer disputes, for much of that time. Back in 2011, well before anybody could foresee the current crisis caused by the COVID-19 pandemic, Dr Paul Cortés described ODR as ‘a form of ADR which takes advantage of the speed and convenience of the Internet and ICT’[1]. ODR is ideally suited to negotiation, mediation and arbitration, or a combination of the three; the fundamentals of those ADR methods, which can be found in my article here remain unchanged, the key change is the manner in which the process is conducted.
The majority of mediations follow a very similar procedure. There is an initial plenary (joint) session where all parties and their lawyers (optional at a mediation) meet with the mediator. The mediator introduces the session and sets ground rules, ensures the mediation agreement has been signed and provides each party with an opportunity to give a short overview of their case as they see it.
Thereafter the majority of the day is spent in separate meetings whilst the mediator helps explore the dispute, narrow down issues and provides a reality check. Often these sessions will be 40-60 minutes in duration with the mediator providing each party with something to think about or work on whilst he or she is with the other party. Toward the end of the day the meetings switch to what is commonly referred to as shuttle diplomacy, where the mediator explores offers between the parties until a consensus is reached.
The final part of the day is a further plenary session where the settlement agreement will be drafted and preferably signed.
It is pivotal to mediation that parties can discuss the dispute in confidence with the mediator and that no offers or other information is communicated between parties without express consent. It is easy to see how this can happen in a conferencing facility with numerous rooms – but how is it achieved online?
What happens online?
ODR makes use of video teleconferencing tools such as Microsoft Teams and Zoom as the medium for conducting the mediation. The plenary sessions are straightforward – everybody joins the meeting, the mediator essentially chairs it and each party speaks in turn. The benefit to using an online platform is the mediator can control who speaks, thus ensuring that at the emotional, often impassioned, stage of opening statements, neither party interrupts the other.
Thereafter, both MS Teams and Zoom offer breakout rooms where the mediator meets with each party and their lawyer in turn. Breakout rooms are marvellous, they ensure that neither party disappears, and at the same time provides the same level of confidentiality to parties in the private sessions.
Whilst for some, online working may still feel odd, for many it is the norm. In the post-covid era it is likely that a larger portion of the population will continue to work from home and therefore remote meetings will become second nature.
Benefits of ODR
There are added benefits to using an ODR method to settle a dispute, namely time and money.
Traditional mediation takes place in a neutral venue which would require both sides, and their lawyers, to travel to that place. ODR can take place from anywhere, no need to travel, saving time and money.
Comfort is an underlying benefit; psychologically people are more comfortable in their own environment; this has the potential to put each party in a better position to negotiate a settlement in due course. When you also take away the travel factor, it is more likely that parties will come to the mediation rested and ready to engage with each other.
Finally, it is very rare for the mediation fee to include venue hire; conducting a mediation online removes this problem and saves a great deal of money and effort.
To discuss ODR and its benefits in greater detail please contact John-Paul here.
[1] https://www.law.ox.ac.uk/sites/files/oxlaw/dr_pablo_cortes.pdf
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