Negotiation Research You Can Use: Moving from In-Person to Online Mediation

With technology more present than ever in dispute resolution, it's time for mediators to catch up with online mediation processes.

By on / Mediation

online mediation

Laptops, smartphones, databases, and project-management software have become common tools of the negotiation trade. Meanwhile, even as online dispute resolution has risen in popularity, online mediation remains elusive, with mediation being a largely technology-free zone, with smartphones often turned off and tucked away.

“The field of mediation has proved surprisingly resistant to technological influence, an island of stability in a sea of change,” write Alyson Carrel, Harry B. Reese Teaching Clinical Professor of Law and Co-Director, Center on Negotiation and Mediation at Northwestern Pritzker School of Law, and Creighton University professor Noam Ebner. In conversations with practicing mediators—who are often older individuals working in second or third careers—Carrel and Ebner uncovered disdainful attitudes toward online mediation, and an “If it ain’t broke, don’t fix it” attitude toward the use of technology in traditional mediation.

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Conflating the use of technology in face-to-face mediation with online dispute resolution is a mistake, they write. As the courts and private companies increasingly rely on online mediation to resolve disputes quickly, cheaply, and efficiently, in-person mediation risks being slowly phased out. And attorneys who are now accustomed to basing their advice on data analysis may become hesitant to recommend mediation to their clients if it remains reliant on mediators’ “anecdotes, war stories, and estimates” rather than on hard data, write Carrel and Ebner.

Changing the perception of online mediation

“If the mediation field does not seriously consider the implications of technology’s impact on society and the profession, we may lose the next generation of mediation parties, practitioners, and scholars,” Carrel and Ebner caution.

Mediators routinely use technology to complete business tasks, such as creating websites, intake management, and report generation. How might they draw on technology to improve the mediation process itself? Cautioning that mediators shouldn’t “adopt technology for technology’s sake” but apply it only “when it provides a solution to a problem, enhances a service, or meets a need,” Carrel and Ebner suggest several currently underused tools, including the following:

  • Organizational support apps. Entrepreneurs, take note: Mediators need a great app that can help them centralize key tasks, such as taking notes, accessing forms and checklists, reviewing mediation techniques, analyzing data, scheduling meetings, and conducting surveys. Mediators’ clients would also benefit from an app that allows them to take notes, refer to information relevant to the case, and brush up on negotiation best practices.
  • Decision-making tools. A multitude of data-analysis tools are currently available to help mediators and their clients reach more rational decisions. Mediators can research litigation and settlement outcomes for similar cases to offer more informed evaluations or test disputants’ own conclusions. Decision-making software allows mediators and disputants to quantify their preferences on issues and options. Bidding software can de-escalate tension by calculating prices, damages, and other contentious figures. Parties can also plug their interests into software that will suggest trade-offs and solutions.
  • Between-sessions collaboration. In multisession mediation, technology can help mediators and clients move forward before and in between sessions. Tools such as Google Drive, Dropbox, and Google Docs allow parties to share files, collaborate on documents, and move closer to an agreement.

There’s no substitute for an experienced mediator trained in active listening, conflict de-escalation, option generation, and other essential skills. By exploring the benefits technology has to offer, mediators may enhance their practice—and make their jobs a little easier.

Have you taken advantage of online mediation tools? How did that change your results?

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