Mobile Mediation: Mediation as Close as Your Telephone

Moderated by Kristen Blankley

As Online Dispute Resolution (ODR) grows, mediators have been looking for ways to apply technology to dispute resolution. One of the newest areas of online dispute resolution is the use of “smartphone” or tablet technology in dispute resolution, notably mediation. While similar to mediation online, mediation by mobile device offers some unique opportunities and difficulties, and this post will seek to discuss those points. Because participants utilize their mobile device to mediate their disputes, this type of practice is becoming known as “mobile mediation.”

Please feel free to add your own thoughts and perspectives.

Benefits

Utilizing mobile devices in mediation has at least two major advantages. The first advantage is accessibility and connectivity. Smartphone use is becoming more and more common among the public, and some people are trading in their laptops for tablets. Many people are comfortable using their phones, and “mobile mediation” would give these people the chance to participate in mediation in a way that is hopefully comfortable to them. In addition, the participants may feel safer by participating in mediation from a comfortable place, such as at home or from the office. Mobile mediation may also help with accessibility in rural areas, by increasing accessibility to mediation.

Mobile mediation also has the benefit of utilizing the camera function on the phone. The camera can be used like a video camera and can be used to give all of the participants a “real time” view of certain elements of the dispute. For instance, a camera could be used to give a current view of damage to an automobile in a car accident case, broken tree limbs and damage to a house in a dispute over insurance coverage, or even personal injuries to self or others. Parties rarely have the opportunity to “show and tell” in traditional mediation, and this technology could help increase understanding by giving increased access to information.

Drawbacks

As with any type of ODR process, the parties lose some elements of communication by not being in the same room. While the video and the camera do help with communicating non-verbal cues, sometimes there is no substitute for in person meetings. ODR processes, including mobile mediation also raise some security concerns regarding the security of the technology and whether the process will involve “off camera” onlookers.

The technology, too, brings some additional drawbacks. Smartphones and tablets have smaller screens than computers, and participants may find it difficult to be looking at a split screen showing all of the different participants on a small phone screen. In addition, in some areas, access to wireless networks or appropriate bandwidth may be a problem. Video conferencing technology requires significant bandwidth so that the video can stream without interruptions, skips, or pauses for information loading.

Have you used this technology yet? How do you like it? Are you willing to consider it?

Moderator Bio:

Kristen M. Blankley is an Assistant Professor at the University of Nebraska College of Law, where she teaches on a wide variety of alternative dispute resolution topics, including negotiation, mediation, and arbitration. She is a 2004 graduate of The Ohio State University Moritz College of Law, where she graduated with a Certificate of Dispute Resolution. Since her graduation, she has been active in the field of Alternative Dispute Resolution, and she is also a mediator. Prior to joining the University of Nebraska, Professor Blankley was an attorney with the firm Squire, Sanders LLP (Columbus, Ohio office), where she focused her practice on business litigation.

Professor Blankley also an active scholar in the field of Alternative Dispute Resolution, publishing on arbitration, mediation, and ethics in alternative dispute resolution issues. She has written on topics including class action arbitrations, judicial review of arbitration awards, mediation ethics, and mediation confidentiality.

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Permalink Reply by Kristen Blankley on November 7, 2013 at 9:49am

All of these great comments have made me think some more about the mediator's role in determining the type of process that will be most helpful in any given situation. Mediators who do a thorough job of pre-mediation prep work with the parties will hopefully start to have a handle on the types of conflict that are present in the dispute.

If the parties are geographically close and able to sit together in the same room, the mediator is faced with a choice of process. The mediator should certainly consider the value of F2F meetings, either with the other party present or in a caucus style (or asynchronously, even). Mobile mediation could be considered as an alternative.

I expect, however, that mobile mediation will be more often considered when F2F meetings are not even an option, largely due to geographical distance. In these situations, the options may be mobile mediation or no mediation. When looked from that point of view, the drawbacks of mobile mediation must be considered against a different BATNA (i.e., no mediation) and not compared against our mediation "ideal" (which is still considered F2F).

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Permalink Reply by Erin Amdor on November 7, 2013 at 1:00pm

This is a very interesting topic.

I think mobile mediation could work well for certain case types, but might not be well suited for others. Cases involving business transactions, or insurance claims, could probably be resolved using this method. However, if there is a high level of emotion involved, face-to face mediation is probably a better forum. Many others have mentioned the issue of nonverbal cues being lost or significantly reduced during mobile mediation. I think this could hinder the process when someone is emotional and might react or perceive a situation differently than they would face-to-face.

Another aspect I thought about is the formality or informality of the process. My first impression is that mobile mediation might be much more informal. Especially since a party could join from anywhere, a certain aspects of a formal meeting might be lost. This would be a concern because parties, or just one party, might not take the process seriously. There are both positive and negative aspects to this issue. Sometimes an informal atmosphere allows more collaborative discussion and openness. However, if one party is very serious and the other less so, the collaboration process could be impeded. For example, if a person is looking for an apology from the other party, and they don’t think that party is taking the mediation seriously, it will be much harder to reach an agreement.

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Permalink Reply by Krista Grace Jessacher on November 7, 2013 at 2:41pm

What a great discussion. Not everyone can afford face2face mediation and online/mobile mediation may be the next alternative. Both participants need to be able to navigate the mobile mediation software, or have someone there to help them. Kristen's point that distance can lead to uncivil behaviour in a mediation was interesting. I'm not sure it is the mediation bringing out those characteristics in people, it could be the conflict/dispute itself brings out the weird/extreme in people's behaviour as they try to deal with the stress, usually unsuccessfully. Kristen referred to email, telephone and video conferencing in Online Dispute Resolution. The amount in dispute may determine the sophistication/cost of a mediation tech platform. I'm a big fan of proportional contribution to the cost of a mediation, so the wealthier participants should pay a much bigger share of the mediation cost than the poorer participants, so that all particpants start the mediation genuuinely wanting to resolve the dispute. I agree with Chittu that the immediacy of mobile response can be a drawback for participants, especially mid-way through the mediation when they are getting tired. Maybe a regular reminder will help participants control themselves even if they are finding the process a bit frustrating.

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Permalink Reply by Monica Stoney on November 7, 2013 at 7:09pm

Professor Blankley,

While I have not personally used the technology you discussed, I do believe that it's presence is growing and perhaps one day might even be the norm. As we become more connected, our world becomes smaller and smaller. Today, it is much easier to do business with people across the globe and maintain relationships with people far away. This, however, necessarily includes disputes that arise out of such relationships. Thus, to solve problems between people that live on opposite sides of the country, or even the world, we must have a way to bring them "together" in a manner conducive to sorting out the issue. And I believe this is the role of "mobile mediation."

The benefits are obvious - the parties to a dispute need not assume the travel expenses necessary to be in the same place at the same time. Thus, mobile mediation is first and foremost convenient. It also enables real-time conversation, as if physically sitting in the same room. Although among several drawbacks is the fact that there is no substitute for an in-person conversation. You mentioned concerns about off-camera onlookers, which led me to something I view as a more serious concern: confidentiality. The Uniform Mediation Act dictates that everything that takes place during the session is privileged and confidential; the only thing that comes out of a mediation is the agreement. But, assuming for argument's sake that we are in a UMA jurisdiction, how can mobile mediation take place and still be in compliance with the governing law? In a traditional mediation session, the parties communicate orally and the mediators may or may not take notes. After the session is completed, the notes are destroyed and all that remains is the agreement, if any, that was produced. However, when communicating via electronic means, it cannot be confirmed or denied that there are no non-party onlookers. So how can the mediators guarantee to the parties that the process remains confidential (as required by law in a UMA jurisdiction)? I believe this issue is something that will need to be considered going forward before technology becomes too dominant a force in the area of mediation.

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Permalink Reply by Brett Spencer Chase on November 8, 2013 at 10:48am

Kristin,

Great topic and I really enjoyed the read. I come from a small town in western Iowa that has a population of about 500 and the closest city where there would somebody qualified to facilitate a mediation is over an hour away, whereas the closest courthouse is only 15 minutes, making litigation logistically more sensible than a mediation. However, even with the small population of my hometown we have great cellphone and internet connectivity which would make something like mobile mediation very appealing. A downside of my small town is that the population is older and may not be able to figure out how to use the technology themselves but they probably could find someone to help them.

On top of my background in a rural community I am 25 and have grown up with mobile phones and the internet and would feel very comfortable using them in the mediation process. I also know that with the increase of mobile phones and the internet that a lot of people who are my age and younger have problems with in person communications and actually feel more comfortable talking over the phone or the internet. In essence, the only real problems I see with using mobile mediation would be with the older generations of our population and I would expect mobile mediation to rise dramatically over the next few years.

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Permalink Reply by Kristen Blankley on November 8, 2013 at 11:24am

Monica ~ That is a great point regarding confidentiality. The confidentiality concern is one that has troubled me since the early discussions of online dispute resolution, and using telephone and videoconferencing in mediations. At some level, mediators have to simply trust that the parties are going to do what they say and not have someone "off camera" watching the process. If a situation came up where there was a serious concern about another person participating behind the scenes, I would likely call a caucus and see if I could get some answers to my questions about participation.

The Uniform Mediation Act concerns are also valid, but the interesting thing about UMA privilege is that the privilege only applies to court proceedings and it can only be waived through affirmative agreement in the courts. Unlike the attorney/client or physician/patient privilege, the privilege is not waived if someone overhears the conversation or if non-parties attend the mediation. So the material would still be privileged, even if confidentiality is lost.

Thanks for your comments, Brett. I am really interested in seeing how this type of technology can be used to increase access to parties in rural communities.

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Permalink Reply by Patrick McGee on November 8, 2013 at 4:51pm

I previously watched the "Social Media and Hostage Negotiation Webinar" before reading and responding to this forum. The Social Media Webinar explored the effect of social media such as Twitter and Facebook in high-risk negotiation settings. What was of particular importance was the idea that social media could be used (sometimes covertly) to gather significant information about hostage-takers so as to build a better rapport with them during the negotiation. Striking up a conversation about the hostage-taker's favorite baseball team or favorite past time might be enough to talk them out of a stupor or to buy time to devise and apply some resolution to safely remove hostages. Social media could be used to broadcast messages to groups of hostages, and GPS devices in cellular phones could be used to locate hostages as well. I found this topic particularly fascinating because I work in law enforcement and understand that law enforcement must not be limited to the formalities of the 'civilized world' in order to be effective; it must respond directly to modern trends.

I found this post particularly fascinating in that it addresses many of the same issues, but instead of in a high-risk situation, media might be used simply to promote comfortability or to facilitate open communication between two parties that might be at odds in a face-to-face situation. Similar to in the hostage situation previously described, social media could be used by mediators to gather information about their clients so as to facilitate better discussion by knowing the clients interests, and maybe even by ascertaining their values through tweets and Facebook posts. This could be accomplished ahead of time, covertly, or through the disclosure of their clients. Internet journals and blogs might be offered by clients so that the mediator can better understand the clients way of thinking, their personal philosophies, and their outlooks on various situations. This would allow mediators to have a greater insight into their clients, and it would allow the clients to disclose information through the seeming-anonymity of the internet without describing it to the mediator. This would make it easier for clients to convey otherwise embarrassing or uncomfortable information. It might also allow the mediator to make inquiries into those types of information.

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Permalink Reply by Chase Brown on November 8, 2013 at 6:21pm

Kristen,

This is a great topic, and one that I feel is very timely considering how much our world depends on and utilizes mobile technology in our everyday lives. First, I do not have a lot of experience regarding ODR, however, after reading some of the forums and postings, I have come to realize that ODR is not simply something that is new and growing, but that ODR is already in widespread use throughout our world. With that being said, I am amazed at how mobile technology enables negotiators/mediators to be better equipped and competent throughout negotiations. As the posts have observed, mobile technology allows mediators to not only mediate from a comfortable space, such as an office or from home, but it can better arm negotiators with valuable information both before, during, and after actual negotiations. Additionally, I would be willing to bet that with the increasing use of platforms such as Facetime, and Skype, that face to face “mobile” negotiations will start to replace the use of older technologies such as email and voice- only telephone calls. The emergence of face to face calling allows people to better judge parties’ feelings and emotions throughout basic steps of the negotiation process, not simply during the final step (mediation). I think that as mobile technology grows, and new platforms for mobile communication emerge, the style and fundamentals of negotiation and dispute resolution in general, will also change.