ADR in the Digital Age: How Online Platforms are Better Suited to Resolve Disputes Than Traditional Forums

By Matthew Zelman

Since Covid-19 remote work has been increasing astronomically in the US.[1]  According to a Gallup poll, even now that Covid-19 is in the past, approximately 27% of workers are fully remote, 53% hybrid, and 21% fully on site.[2]  While there are significant benefits to working from home, there are detriments including losing key relationships with coworkers.  As people could not physically see their coworkers in person and grow and learn from each other’s body language and personal observations, they started losing respect for each other.[3]  This led to an increase in conflicts amongst remote workers with one survey finding that 80% of remote workers have work related conflicts.[4]

As a result of workplaces moving towards remote work, innovative solutions require capitalizing on the benefits that E-Mediation brings. E-Mediation, or Online Dispute Resolution (“ODR”) is very similar to regular mediation and is also a voluntary process.[5]  Benefits to E-mediation include convenience and lower costs.[6]  E-Mediation uses different videoconferencing services including Zoom, Google Hangouts, and Skype which makes the whole process significantly more simple.[7]  Large corporations such as eBay already use online mediation as technology has improved and more transactions move online.[8]  Additionally technology allows choosing who will appear via video, in person, or on the phone and has procedures to ensure privacy and security.[9]  General ground rules, including those regarding breaks and the length of sessions, are easy to maintain as remote mediation requires many aspects to be planned in advance making the actual ADR meeting more streamlined.[10]  Furthermore, ODR allows solving issues for free without going in person to hearings, often making the process days instead of weeks or months.[11]

While E-Mediation is a more innovative solution for the future, in-person ADR still has some benefits that, at first glance, would seem that E-Mediation does not possess.  For one, because there are lower costs associated with ODR, parties may drag out the dispute until they gain a better outcome for themselves.[12]  Non-verbal cues and mannerisms are also important which can be hindered by virtual proceedings as it is much harder to catch these cues, especially if parties turn off their cameras.[13]  This is especially important as a big part of ADR is allowing parties to vent their frustrations and express their feelings.[14]  Fully presenting ones side encourages settlement and a higher satisfaction rate,[15] so understanding the other party’s non-verbal cues is an essential element to resolving conflicts.

Nevertheless, the benefits of ODR greatly outweigh those that traditional ADR brings to the table and is the correct path for the future.  Participants are encouraged to work together to “enlarge the pie” to find joint solutions.[16]  So while it may seem that videoconferencing services prolong disputes, there is additional technology, such as the Negotiator Support System (“NSS”), which assists negotiators to reach agreements.[17]  NSS determines how much parties are willing to be flexible and prompts questions to be answered to diagnose how disputes can be resolved.[18]  Tools such as the NSS are sufficient to ensure expanding the pie is a priority and disputes are not prolonged.  Additionally, the concern that non-verbal cues are lacking in online formats are easily resolved.  A Swedish study showed that many social cues may be lacking in online formats but by setting rules and standards, online meetings can be the same.  Such suggestions include setting meeting preferences such as recommending attendees leave cameras on, shifting screens to place “eye contact” on everyone, and giving feedback.[19]

While in-person mediation has been the standard, 92% of charging parties and 98% of employers of an EEOC study said that they would be willing to participate in the online mediation program.[20]  Mediators have found that online mediation results in better outcomes and is easier and more flexible to use.[21]  This response has been universal, with another study showing that online mediation is preferred across the Americas, Asia Pacific, Africa, and Europe and Central Asia.[22]  While online mediation has grown due to the necessity after Covid-19, online mediation is here to stay and will only further innovate.[23]

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[1] Timothy Noah, Why Remote Work Sucks, News Republic (Apr. 14, 2023), https://newrepublic.com/article/171935/remote-work-sucks [https://perma.cc/47UQ-FVCJ].

[2] Hybrid Work, Gallup (May 1, 2024) https://www.gallup.com/401384/indicator-hybrid-work.aspx [https://perma.cc/8TED-NZZV].

[3] Noah, supra note 1.

[4] Id.

[5] Katie Shonk, Using Online Resolution to Resolve Workplace Conflict, Program on Negotiation, (Apr. 20, 2020), https://www.pon.harvard.edu/daily/mediation/using-online-dispute-resolution-to-resolve-workplace-

conflict/ [https://perma.cc/J59Q-5YCV].

[6] Dafna Lavi, No More Click - Click in Here: E-Mediation in Divorce Disputes - The Reality and the Desirable, 16 CARDOZO J. CONFLICT RESOL, 479, 488 (2015).

[7] Shonk, supra note 5.

[8] Carrie J. Menkel-Meadow et al., Dispute Resolution: Beyond the Adversarial Model 193 (3d ed. 2018).

[9] Howard A. Herman, Remote Mediation: An Opportunity for Customization, JAMS ADR Insights (Sept. 14, 2020), https://www.jamsadr.com/blog/2020/remote-mediation-an-opportunity-for-customization [https://perma.cc/75BC-HQ25].

[10] Id.

[11] Lyle Moran, Online Dispute Resolution Promises to Increase Access to Justice, but Challenges Remain, ABA Journal (Oct. 1, 2021), https://www.abajournal.com/magazine/article/online-dispute-resolution-promises-to-increase-access-to-justice-but-challenges-remain#google_vignette [https://perma.cc/VW6B-Z83S].

[12] Eric Larson, In-person vs. virtual ADR- How to Choose?, Reuters (Apr. 20, 2023, 10:08 AM), https://www.reuters.com/legal/legalindustry/in-person-vs-virtual-adr-how-choose-2023-04-20/ [https://perma.cc/Q6GN-NSQA].

[13] Id.

[14] Christopher Baum, The Benefits of Alternative Dispute Resolution in Common Interests Development Disputes, 84 St. John's L. Rev. 907, 925 (2010).

[15] Id.

[16] Jonathan R. Cohen, Adversaries? Partners? How about Counterparts? On Metaphors in the Practice and Teaching of Negotiation and Dispute Resolution, 20 Conflict Resol. 433, 435 (2003).

[17] Daniel Druckman et al., E-Mediation: Evaluating the Impacts of an Electronic Mediator on Negotiating Behavior, 13 Grp. Decision & Negot. 481, 498 (2004).

[18] Id. at 484–85.

[19] Xinyao Feng, Delivering Non-Verbal Cues in Virtual Meetings- A Qualitative Study of How to Alleviate Online Trust-building Dilemmas in Sales Meeting Context, (Spring 2022) (Ma. Thesis, Linköping University) (on file with Digitala Vetenskapliga Arkivet).

[20] EEOC’s Pivot to Virtual Mediation Highly Successful, New Studies Find, U.S. Equal Emp. Opportunity Comm’n, (June 1, 2022), https://www.eeoc.gov/newsroom/eeocs-pivot-virtual-mediation-highly-successful-new-studies-find [https://perma.cc/T9WQ-P4TH].

[21] Id.

[22] James Claxton, Mediators Like Online Mediation and Other Verifiable Facts, Mediate (June 4, 2021), https://mediate.com/mediators-like-online-mediation-and-other-verifiable-facts/ [https://perma.cc/EJK5-FQLB].

[23] Kristi J. Paulson, Mediation in the COVID-19 Era: Is Online Mediation Here to Stay?, 51 Sw. L. Rev. 142, 155 (2021).