Mediation: Online Dispute Resolution Online

Mediation: Online Dispute Resolution

Online interaction has risen dramatically over the last decade. According to data published by Nielsen Online, the International Telecommunications Union, GfK, and local regulators, as of December 31st, 2000, there were 360,985,492 Internet users. By September 30th, 2009, that figure had grown by more than 380% to 1,733,933,741 Internet users ("World Internet," 2009). This increase in online interaction has lead to an increase in online dispute resolution.

This paper will compare and contrast online dispute resolution with face-to-face mediation. An overview of each concept will first be provided. This will then be followed with an exploration of the success rates of online dispute resolution specifically. Lastly, a discussion of the challenges faced in online dispute resolution that make it a far more difficult environment for mediation than face-to-face mediations will be presented.

Face-to-Face Mediation

Conflict, and therefore disputes, are a normal part of both professional and personal lives. Parties with varying interests often find themselves in dispute with another party. Traditionally, this has often resulted in face-to-face mediations to resolve the dispute and has been especially effective in emotional disputes such as child custody matters (Lawrence, 2007). As Fritz (2008) notes, this mediation process can be tailored to fit any circumstance; however, there are several basic components that are found in most face-to-face mediations.

Face-to-face mediation involves the use of a neutral third party to assist the parties in resolving their dispute (Fritz, 2008; Zepps, 2007). Often the mediator meets with the party that has initiated mediation first, to get their account of the situation. From there, the mediator will determine which issues are mediatable and how best to move forward. The second party is then contacted to get their account of the situation and to give them the same options of moving forward with mediation as the first party. If both parties agree to mediation, the process continues. The process is voluntary, therefore both parties must agree to mediation, prior to the beginning of the process.

As mentioned, the mediator is a neutral third party and therefore does not take sides. Instead, they are present to facilitate the mediation process and the establishment of a resolution to which both parties agree. The mediator is traditionally also charged with establishing and maintaining ground rules and processes for the mediation and ensuring both parties are given equal time to explain their position. The mediator also facilitates communication between the two parties, encouraging them answer questions the other has and assures that there is mutual understanding of the other's position, while looking for common ground between the two parties (Fritz, 2008).

Face-to-face mediation is typically a confidential process. In addition, the parties can decide to keep mediation negotiations as well as the settlement agreement confidential. In addition, face-to-face mediation is risk free. If the mediation process is unsuccessful in resolving the dispute, the parties can still take legal action.

The one component of face-to-face mediation that sets it apart from other forms of dispute resolution is the face-to-face aspect. Both parties are present, at the same location, in face-to-face mediation. One important step in the process, therefore, is determining a place and time that is amenable to both parties. A neutral location -- often the mediator's facility -- is typically chosen.

The desired end result of face-to-face mediation is to find a resolution that is acceptable to both parties (Fritz, 2008). The neutral mediator will help create the agreement, including any contingencies that need to be included. When an agreement is reached through mediation, Patterson (2006) notes that there is typically a higher level of satisfaction with the end result, for all parties involved. The agreement that is reached is informal and voluntary. However, the parties involved can draw up a legal agreement based on the mediation resolution, in order to formalize the agreement.

Online Dispute Resolution

The continuing advancement of online interaction, in particular online commerce, has created a new form of dispute resolution -- online dispute resolution. Online dispute resolution, in many ways, is very similar to face-to-face mediation. The primary difference in the two methods of mediation is that the interactions with online dispute resolution primarily occur over the Internet, as opposed to meeting face-to-face, or via some other form of communication such as the telephone.

Like face-to-face mediation, a third-party, neutral mediator is a part of the resolution process. Their job is the same in both forms of dispute resolution -- to facilitate the resolution process and ensure ground rules and processes are established and followed, and that both parties are treated equally. In addition, the mediator will help ensure the parties involved have received the information concerning the other party's position.

However, unlike face-to-face mediation, the mediator in online dispute resolution will often make a decision, if the parties cannot come to an agreement on their own. This decision does not negate either parties' ability to pursue legal action, but it often forces an end to the dispute. In addition, unlike face-to-face mediation, some instances of online dispute resolution are mandatory for parties involved, not voluntary.

An example of these deviations, from the traditional face-to-face mediation process, can be found in disputes arising from the use of the popular Internet auctioin site eBay, with its affiliated company PayPal. eBay acts as a third-party auction house, facilitating the sale of goods between seller and buyer. In instances where there is a dispute regarding a good sold, the company provides online dispute resolution.

eBay's online dispute resolution process begins with encouragement that the buyer and seller contact each other and try to come to some form of an agreement. A dispute case is established and both parties are asked to give information regarding the situation. If this does not lead to resolution of the conflict, eBay may decide on the appropriate resolution. This may include the buyer receiving a refund, the reversal of a sale, or requiring the buyer to pay for an item. If a buyer did not receive an item or the item did not match the seller's description, eBay may even cover the purchase price plus shipping. All eBay transactions are covered by this resolution process ("eBay's role," 2009). As noted, this dispute resolution process is not voluntary, like traditional face-to-face mediations, and part of the agreement users make when agreeing to be an eBay member.

Despite these significant differences, much of the processes of online dispute resolution and face-to-face mediations are the same. In most instances, both are confidential processes. There is also the ability to adapt the mediation process, in online dispute resolution, to fit the specific situation, just as there is in face-to-face mediation. There is also a considerable cost savings in both forms of mediation, over the costs of litigation ("The pros," 2003); however online dispute resolution is even more cost effective than face-to-face mediation (Siburian, 2007). Most importantly, the desired end result of a solution agreeable to both parties is the same in both types of mediation.

Success of Online Dispute Resolution

Turel, Yuan, and Connelly (2008) note that high quality customer service is a critical aspect of any successful organization. However, it can be especially challenging for online merchants. This situation is made even more difficult when the customers are complaining about one another. Turel, Yuan, and Connelly conducted an online experiment with 380 participants to study the effects of justice and trust on user acceptance of e-customer service, such as online dispute resolution.

It was discovered that trust was critical to the acceptance of e-customer service, including online dispute resolution. In addition, the participant of Turel, Yuan and Connelly's (2008) study had to feel that justice would most likely occur. If these two conditions were met, then the participant would use, and be satisfied with, e-customer service facet like online dispute resolution. In instances where this trust and sense of justice was not present, the participants did not wish to use services like online dispute resolution and were not as satisfied with the results, if they did use the e-customer services.

Part of the success of online dispute resolution has come from the inherent nature of the process itself. First, obviously, both parties do not have to physically be in the same locale to have mediation occur. This can be a considerable cost savings for both parties. The asynchronous nature of e-mail means that a response can be written and then sent at a later time. This can slow the process down, in a positive fashion, ensuring parties are responding thoughtfully and fully considering the communications that they've received as well as the one they would like to send, rather than the impulsive vocal communications that can occur in face-to-face mediations. Lastly, online dispute resolution avoids the challenges presented when multiple possible jurisdictions are involved and deciding which jurisdiction should preside over the dispute ("The pros," 2003). Although there are benefits to online dispute resolution, as Cortes (2008) notes, because of the challenges to the process, many mediation services have ceased providing online dispute services.

Challenges of Online Dispute Resolution

Despite the similarities to face-to-face mediation and the advantages over this form of mediation, online dispute resolution still has considerable challenges. The primary challenge with online dispute resolution is that the online world does not perfectly mirror the real world. Mediation is typically most effective if the parties of the dispute are physically present with the mediator, yet with online dispute resolution there is a level of impersonality that interferes with the mediation process ("The pros," 2003).

Although there are benefits to the asynchronous nature of e-mail, mediation is sometimes more difficult due to this factor. Negotiations are often facilitated by the parties being able to freely communicate with one another. The delay between responses can cause frustration for both parties and negatively affect the process. Much of the dynamics of face-to-face mediation are lost as well ("The pros," 2003). The emotional aspect is a concern in online dispute resolution as well.

Emotions are an integral part of many mediations. With online dispute resolution these emotions can get lost or can get misconstrued. Online communications lake the variable pitch, tone and volume that comes with face-to-face verbal communication that are so often important in determining the feelings behind a communication. E-mail communications cannot transmit personality or physical cues. They lack the facial expressions that go with feelings, and are not as rich and meaningful as face-to-face communications. For this reason, it's often more difficult to evaluate how flexible the parties are with their negotiation or how strong the party feels about a particular concern ("The pros," 2003). What can be worse is feelings being misconstrued through the written communication of e-mail. Without the nuances of voice inflection and body language, a party can misread the tone of an e-mail and have it negatively impact their understanding (Gillieron, 2008).

The mediator themselves are at a disadvantage with online dispute resolution, as opposed to face-to-face mediation. E-mail communication does not allow the mediator to as effectively use seriousness, professionalism, occasional humor, and charisma to guide the mediation process and facilitate negotiation. They are not able to use their physical self to set the parties at ease. Also, like the parties involved in the dispute, they too are at a disadvantage when trying to discern the emotion behind e-mails. They also are without the intuitive cues of facial expression, verbal tone and body language, that are present with face-to-face mediation ("The pros," 2003).