Methods of Dispute Resolution: Building Trust in Online Mediation

Methods of dispute resolution expanded during the Covid-19 pandemic as we all moved online. An expert on online mediation describes pitfalls of the process and how to confront them.

By Katie Shonkon / Dispute Resolution

Before the Covid-19 pandemic, mediators and other negotiation practitioners often insisted on meeting in person, convinced that online methods of dispute resolution lack “the human touch”—the warmth, energy, body language, and other subtle factors that build essential ingredients in conflict resolution, including trust, empathy, and rapport.

But when lockdowns and social-distancing restrictions took hold in the spring of 2020, “resistance to online practice of negotiation and mediation was swept away in a heartbeat, and the entire field shifted online,” writes Creighton University professor Noam Ebner in “The Human Touch in ODR: Trust, Empathy, and Social Intuition in Online Negotiation and Mediation,” a chapter in the forthcoming book Online Dispute Resolution: Theory and Practice (Eleven International Publishing, 2021). That wholesale shift toward online conflict resolution has led many to recognize that, in fact, alternative dispute resolution processes can succeed and even thrive online.

That said, conducting mediation online poses special challenges. In particular, it can be difficult to establish the trust required of common methods of dispute resolution, including mediation and negotiation, via emails and videoconferencing.


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Building Trust in Online Mediation

In his article, Ebner outlines eight challenges to trust building in online negotiation and methods of dispute resolution, and offers potential remedies. We present four of them here.

1. Put Disputants at Ease from the Start

When negotiating via email, we tend to trust our counterparts less than when dealing with them in person, which leads us to hold back on cooperation and information sharing, DePaul University’s Charles Naquin has found in his research. To help disputants feel more trusting from the start, Ebner advises mediators to give them a guided tour of the online mediation platform being used, taking time to explain features until participants feel comfortable with them. Mediators might also tell the parties that it is normal to feel uneasy about online mediation—and encourage them not to confuse their skepticism about the process with distrust of other participants, advises Ebner.

2. Compensate for the Lack of Contextual Cues

Online conflict resolution lacks the contextual cues we use to “read” each other. Emails and phone calls cannot convey visual cues, including facial expressions and a sense of physical presence. Videoconferencing offers more audio and visual cues but doesn’t have the richness of in-person interactions. For example, on video we typically appear as “talking heads,” are unable to speak at the same time, and don’t make direct eye contact. Ebner advises mediators to highlight these challenges and to ask disputants to communicate their thoughts and feelings as clearly as possible. Mediators should also be prepared to pause conversations to restate what they’ve heard and ask parties for clarification.

3. Address the Tendency to Assume Malicious Intent

When methods of dispute resolution lack contextual cues, participants have difficulty interpreting them accurately. In particular, they may fall prey to the fundamental attribution error—the tendency to attribute a counterpart’s negative actions and statements to their character and intentions rather than to benign circumstances, writes Ebner. For example, if your counterpart rejects an idea that you shared, you might assume they are intentionally being obstinate, when it could be that they don’t have the authority to implement the idea. To overcome this pitfall in online mediation, Ebner advises mediators to ask clarifying questions after a message that seems unclear is delivered. By doing so, mediators can slow down the process and reduce the tendency for disputants to make knee-jerk negative assumptions.

4. Reduce Anonymity and Detachment

No matter what online methods of dispute resolution are used in a mediation—email, phone, videoconferencing, etc.—the fact that participants are not in the same room will promote remoteness, anonymity, and detachment. Unfortunately, the dehumanization that takes place online “engenders assumptions that one can get away with trust-breaking behavior at the same time as it lowers moral inhibitions from doing so,” writes Ebner. “To allow trust to develop, we must incorporate unmasking dynamics into online processes—and the earlier on, the better.” He advises mediators to try to build rapport early in the process. “Sharing some personal information humanizes yourself and models open communication,” he writes. Crises such as the Covid-19 pandemic, Ebner has noted, provide a natural opportunity for negotiators and mediators to build rapport by asking each other how they are coping. Affirming your shared humanity and showing concern for each other will go a long way toward building trust in online mediation.

What advice can you offer from your experiences with online methods of dispute resolution?


Discover how to improve your dispute resolution skills in this free report, Dispute Resolution: Negotiate Strong Relationships at Work and at Home, from Harvard Law School.