National Center for Technology and Dispute Resolution

Colin suggested that I past my original posting that generated this thread, which follows:

Orna, who posted earlier today [Monday], suggested that “the difficulties in developing identical equivalents online could lead us to question some of the practices associated with ADR.” What practices might you question?

I already have questioned the requirement of mediator impartiality because of the tension created between the ethical requirements of mediator impartiality and fairness, especially with respect to the substantive outcome. Perhaps, Colin, you could include this as a fourth thread.

During my research of statewide civil mediation standards of conduct, I was able to locate standards in 36 states. These were either court connected or promulgated by a professional organization. Every set of standards requires mediator impartiality, as do the Model Standards. Yet, four or five states also require the mediator to ensure fairness of the outcome. As soon as the mediator aids the perceived weaker of the parties to ensure a balanced, fair outcome, I believe the mediator has infringed on her ability to maintain impartiality. In a series of law review articles, I have posed alternative solutions. One includes a redefinition of mediation to delete any requirement of impartiality. Another approach is to narrow the definition of mediation so that traditional mediation maintains the requirement of mediator impartiality and the mediator would serve in a purely facilitative manner. A second category of mediation would be deemed a “mediated settlement conference,” in which the neutral would not have to remain impartial and could ensure informed decisionmaking, a balanced process, and ultimately a fair outcome. A third approach is to create a hierarchy of values in which one ethical value trumps all others. Should the paramount value be party self-determination? Should it be confidentiality or impartiality? Whatever it is, the paramount ethical value prevails depending on the parties and subject matter and still allows mediation to continue as a flexible process.

Now, what does all of this have to do with ODR? Perhaps nothing where an automated system is used. But what about the mediator who works individually with the parties online? The digital trail of communication by and between the mediator and parties can serve as evidence of inappropriate mediator conduct, at least in terms of impartiality and fairness. Will this make it more difficult for an online mediator to remain ethical? Is this another reason to develop separate online standards of conduct for ODR?

I hope some of you will share your thoughts.

Susan Exon

Balanced ? does that mean not assisting the parties.. this is where I am having difficulty in both face to face – and now online non-adjudicartory dispute resolution… If an obligation to assure a fair process (whatever that means) exists, then does the neutral provide assistance to a party ? If so, not only is there a loss of neutrality — or for that matter impartiality — but essentially the netural becomes an advocate for one party — to me, that violates the very essence of hiring a neutral third party — which is the phrase used in much of the literature….. I was also particularly struck with the thesis of Mann in the International Journal of Law and Information Technology on the need to even out “uneven bargaining conditions” ( and how some of the difficulty can be accomplished online) — Despite the premise that courts provide fairness – we all know that settlement negotiations are quite often conducted far from an even playing field.
And to add another concern, if the netural assists a party – in their presentation, with information, etc., what potential liability has he opened himself to ?

Hi all –
I’m trying to understand where this very interesting discussion of the balanced/fair/impartial/neutral conundrum we as a field have tied ourselves up in has special implications when discussing ODR.

Is it only because, for the first time, we now have a paper trail (or an ‘e-paper trail’) connecting a mediator’s words to a party’s response and actions? If this is the connection – is this important for evidentiary reasons (’Watch out mediators! The neutrality watchdog is going to sniff you down!’) or for reflective purposes(’Huh – I meant to be impartial, but I guess I didn’t come off all that impartial, did I? Note to myself: No more calling parties ‘You jerk!’).

Both of these seem worthwhile topics, to some extent (my own interest is in the second, I’ve learned some fascinating things about my own mediation habits and tendencies by reading through online mediations after-the-fact). But – might there be other connections between ODR and impartiality that I’m missing, other than the paper trail?

Hi Everyone,

Sorry for the delay in responding back to Kim’s question about balance. I had referenced some work by Robert Benjamin. He acknowledges that a mediator cannot be impartial because he or she actually becomes part of the system. He advocates for mediators to be “balanced” in their communications with the parties to protect everyone (and hence I believe the system) rather than protect just one person. This, I think, plays heavily into the notion of fairness. If the mediator is able to balance the communication channels so that everyone has a chance to be heard — really heard — and confirmed, then they can make better informed decisions. For example, a mediator can seek to temper the bully party and provide a safe environment for the weaker party to speak out. Under this scenario, the mediator would not be impartial, but would be balancing the communication between the parties.

So this can be a really important aspect of ODR because the written lines of communication offer the reflective environment for the mediator to study and improve his or her skills, both during the ODR and afterwards, especially in providing the time to choose appropriate language to use with the parties. As a mediator, I would be afraid of the use of the written word to come after me. Plus, confidentiality plays into those situations unless specifically exempt for malpractice situations.

I realize this is the last day for cyberweek. Please take a few moments to make some final comments. I have enjoyed participating with everyone and thank everyone for your valuable input. I wish there was a way to keep this discussion going.

Many thanks to all of you for providing enlightening information,

Susan Exon