03 June 2019

How can online dispute resolution help clients and lawyers to better resolve disputes

Published on 03 June 2019

Online dispute resolution is growing. For many clients, it promises a swift, inexpensive and convenient method by which to resolve disputes, particularly for clients in remote locations or who may wish to avoid the emotional confrontation of being in the physical space as opposing counsel. 

Insights explores the rise of online mediation in the law, its benefits and challenges, and what areas of law are most likely to be affected.

Improving access to justice
A pilot program is already underway in Victoria, commissioned by VCAT (the Victorian Civil and Administrative Tribunal), the state’s peak tribunal. Currently, VCAT requires applicants to appear in person at hearings with VCAT mediators and other appropriate parties. However, VCAT is now investigating the introduction of online dispute resolution (ODR) to improve access to justice, especially for applicants with a disability or those living far from the tribunal.

The pilot program is currently being run for small civil claims, led by Modron, an online dispute resolution technology provider.

Online Dispute Resolution was a major recommendation from Victoria’s 2016 Access to Justice Review, which noted that while access to justice is diminishing, the community need for justice and effective dispute resolution is growing.

Indeed, a recent survey indicated that more than 70% of customers would be open to resolving their disputes online, reflecting strong community demand for an online model.
In light of these results, what does online dispute resolution involve, and how could it improve both the efficacy and number of clients the law could assist?

Email-driven dispute resolution levels the playing field
Few dispute resolution sessions are conducted via video conferencing. In fact, the majority of sessions occur via email. The chief reason for this is convenience. Parties can participate when they are available, and the slower pace of email correspondence, compared to a live session, allow mediators to carefully consider their responses and approach rather than reacting in the moment.

According to a Harvard ‘Program on Negotiation’ review of online mediation, another key benefit is more a level playing field. Email-driven mediation diminishes the impact of strong personalities that might otherwise tend to dominate a live mediation, while allowing more reserved parties to be heard.

The dangers of long distance
Naturally, long distance dispute resolution presents its own problems. Parties who correspond via email may miss cues from body language, facial expressions or tone of voice. Talks are therefore more prone to misunderstandings and may lack the rapport and warmth of a face-to-face mediation. Frustrated parties may be more inclined to send a hostile or insulting message or abandon the process entirely.

So much of mediation depends on trust and rapport. Alternatives to court-based dispute resolution work best because the participants feel heard, with their concerns properly addressed by the process and outcome.

Establishing rapport online
It is crucial to establish strong rapport through an online dispute resolution process. A survey by Northwestern University law professor Stephen Goldberg confirms this, with veteran mediators noting that establishing rapport is more effective to online mediation than employing specific mediation techniques and tactics.

Rapport must be genuine, the survey participants noted. Parties must feel heard, with their interests clearly understood. Only in this environment can a mediator hope to reframe the dispute and propose creative solutions.

Key to success is a sense of invisibility. If a mediator can subtly urge participants towards outcomes that they feel they reached of their accord, they are more likely to abide by the agreement.

There is no doubt online dispute resolution will play a prominent role for ADR practitioners in the future. It is already being adopted by many organisations, including eBay, to help settle disputes between parties located far apart from each other. Family law is a likely area of growth, given its emotionally charged nature.

For lawyers looking to serve more clients better, exploring online dispute resolution can provide an opportunity to help clients reach the outcome they seek in a manner convenient, comfortable and accessible to them.

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