The Rise of Electronic Dispute Resolution Processes: A Summary of a Recent Look into Online Dispute Resolution

Dafna Lavi, Til Death Do Us Part: Online Mediation as an Answer to Divorce Cases Involving Violence, 16 N.C. J.L. & Tech. 253 (2015).

Summary and Analysis by Anna Grushetsky

 

In “Til Death Do Us Part: Online Mediation as an Answer to Divorce Cases Involving Violence,” Lavi explores the potential benefits of using electronic dispute resolution to address some of the issues that often arise during in-person divorce mediation. Specifically, Lavi suggests that an electronic mediation process may better address the needs of parties who have experienced spousal violence.[1]  She describes a new form of Alternate Dispute Resolution “A.D.R.” dubbed “online dispute resolution,” or “O.D.R.” for short. [2]  O.D.R. recognizes the potential to use modern technology to solve age-old issues facing survivors of domestic violence in divorce through e-mediation, or online mediation.[3]  Lavi explains that this O.D.R. process may be particularly effective in mitigating the power imbalances that often result from domestic violence. [4]  Lavi defines domestic violence as a pattern of behavior including physical violence, and/or emotional coercion by one intimate partner on another to establish power and control over the other.[5]

Some key technologies are already at work assisting parties in boundary-setting in O.D.R. processes.  These O.D.R. methods include “e-mediation,” “e-negotiation,” and “e-arbitration,” are all online permutations of the well-established components of the A.D.R. toolbox.[6]  While traditional A.D.R. includes arbitration and mediation, which typically bring three parties to each dispute: two parties and an arbiter or mediator, O.D.R. methods of mediation and arbitration add a fourth party: technology.[7]  In most respects, O.D.R. mediation mimics A.D.R. mediation: the parties agree on ground rules, the mediator reviews background documents and identifies points of dispute, and parties present their respective solutions.[8]  The mediator can then analyze and synthesize mutually beneficial solutions, allowing the parties to participate in a guided game of solution “ping pong,” gradually arriving upon an acceptable resolution.[9]  Of course, mediation conducted online is still conducted “in the shadow of the law,” rather than in a vacuum, requiring a legal and enforceable resolution.[10]  Legal issues’ nexus with the internet was foreshadowed by issues in E-commerce, inducing the advent of internet disputes in the latter half of the 1990’s.[11]  O.D.R. arose naturally out of disputes involving internet activities, but has evolved and expanded to include typically “off-line” disputes, such as divorce, in recent years.[12]

E-mediation presents a unique answer to issues arising in divorce cases involving violence.[13]  Traditional divorce litigation has come under criticism in recent years as critics point out that the adversarial nature of litigation fails to adequately account for the unique and personal issues presented in family law matters. [14]  Many critics have also agreed that cases involving violence present unique challenges that inhibit the effectiveness and appropriateness of a traditional adversarial process.[15]  Escalation of existing conflict between divorcing parties is of particular concern in cases involving domestic violence, where the escalation of conflict can devolve into violence.[16]  One benefit of traditional mediation processes that makes mediation more attractive than litigation for divorcing parties is enhanced privacy. This benefit can be especially important in domestic violence situations, as privacy is an issue survivors of domestic violence have cited as preventing them from reporting the abuse.[17]  Though traditional mediation has some advantages over litigation in situations involving domestic violence, there can be safety issues presented by the divorcing spouses’ physical presence in the same space at the same time when there is already a risk of violence.[18] The risk of violence is particularly high in domestic violence cases during the termination of the relationship, and violence is more prevalent after mediation than other traditional legal procedures in a courtroom.[19]  Traditional mediation also fails to properly account for the power differential between domestic violence victims and their abusers coming into the process.[20]  Even with the limitations inherent in traditional mediation, divorces, both with and without components of domestic violence, are often rated as more successful by participants in mediation than participants in litigation.[21]

E-mediation presents an even more attractive solution for survivors of domestic violence who wish to mediate their divorces.  Projects assessing the effectiveness of e-mediation have reported high levels of satisfaction in family law cases.[22]  Of particular significance in divorces involving domestic violence, e-mediation removes the physical danger inherent in meeting face-to-face with one’s attacker, while preserving an avenue of direct communication between the parties and the mediator.[23] Reliance on written real-time communication can also remove physical gestures and body language employed by a domestic violence perpetrator to intimidate the victim spouse with a coded threat of violence.[24]  Additionally, the mediator can maintain separate chatrooms or video conferences with either or both parties, which reduces apprehension about frequent or lengthy caucuses during the mediation.[25]  The internet communication can also have a leveling effect in relationships with inherent power imbalances, with or without domestic violence.[26]  With reliance on written communication, the effect of “good talkers” and social expectations of gender roles is reduced, preventing a charismatic or controlling party from gaining too much of an advantage.[27]  Traditional mediation is often faster than traditional litigation processes, and e-mediation can increase the speed of resolution even more by eliminating the need to coordinate physical meetings.[28]  In domestic violence cases, time may be of the essence in reducing danger to the victim by physically and economically disentangling the parties quickly.[29]  Eliminating the physical meetings can also reduce costs of renting a space and additional lawyers’ fees involved in traveling.[30]  Online mediation also presents some challenges, such as limiting the expression of potentially valuable nonverbal communication. Despite limitations, Lavi offers, online mediation may yet be the “lesser of two evils” when the threat of physical violence precludes traditional mediation.[31]  Lavi recommends slow adoption of e-mediation and utilization of both online and in-person processes to tailor divorce mediation to the needs of divorcing parties.[32]  Introducing e-mediation training for mediators along with would produce the most desirable results by allowing mediators to build the necessary skills to implement techniques necessary for O.D.R.[33]   Implementing systems of evaluation and control will allow O.D.R. to fine-tune its processes and ensure that mediators have the requisite skill and certification to enhance the legitimacy of the process. [34]

[1] Dafna Lavi, Til Death Do Us Part: Online Mediation as an Answer to Divorce Cases

Involving Violence, 16 N.C. J.L. & Tech. 253 (2015).

[2] Id. at 255.

[3] Id. at 255.

[4] Id. at 258.

[5] Id. at 258.

[6] Id. at 259.

[7] Id.

[8] Id. at 259-260.

[9] Id. at 260.

[10] Id.

[11] Id.

[12] Id.

[13] See id. at 261.

[14] Id. at 261.

[15] Id. at 261.

[16] Id.

[17] Id. at 262.

[18] Id. at 265.

[19] Id. at 265-266.

[20] Id at 266.

[21] Id. at 277.

[22] Id. at 279.

[23] Id. at 280-281.

[24] Id. at 281-282.

[25] Id. at 282-283.

[26] Id. at 283.

[27] Id.

[28] Id. at 288.

[29] Id. at 289.

[30] Id.

[31] Id. at 299.

[32] Id. at 300.

[33] Id. at 305-306.

[34] Id. at 305-306.