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Family Mediation 2.0 - Integrating Online Capacities

by Jim Melamed

October 2019

Jim Melamed
Family Mediation 2.0 – Integrating Online Capacities
by Jim Melamed, CEO Mediate.com
 
Dramatic changes are coming to family mediation programs and practices in the U.S. In the court context, The National Center for State Courts (NCSC) and the Pew Charitable Trusts (Pew) are now leading the way to expand online access to justice, including online dispute resolution (ODR). Countries including Canada, the UK, China and The Netherlands now integrate online processes into their family justice systems. More than 1,000 participants are expected from around the world at the ODR2019.org conference hosted by the National Center for State Courts this October 28-30 in Williamsburg, VA. In the family area, the movement to online mediation in particular is profound.
 
It should not come as any surprise in that internet sensibilities (notably including access and ease) are finally coming to the dispute resolution industry and courts. The Internet has already permeated nearly every economic sector. Consider how travel, financial services, real estate, and nearly every other industry has been revolutionized by the Internet over the past two decades. We are now at a point where end users (also known as taxpayers) are frustrated that they are not able to conveniently and affordably process their legal business 24/7.
 
The Evolving Digitization of Family Mediation
 
Family mediation, particularly in the private sector, has been digitizing since the early 1980s. Basic word processing (WordPerfect then Word) were and are at the core of the growth of mediation as a phenomenon. Ultimately, mediation’s critical deliverable is a written agreement. The mediation industry was truly “liberated” (from white out and retyping pages) by our ability to easily generate unlimited drafts and possibilities with word processing.
 
Further, there was a few years later a magic day when, rather suddenly, we were asked by "with it" participants to send them their draft agreements as email attachments. How cool was this for mediators? This saved 3-4 days each time we wanted to send a new draft agreement to participants compared to snail mail.   Email and attachments also supported participants, in an empowered way, to get more involved in the drafting and editing of their own agreement. And then one wonderful day we were also provided by the digital gods with track changes (in Word) as a technical answer to Fisher and Ury’s long-suggested single text document. Bingo!
 
To summarize how far we have already come in terms of the digitization of family mediation over the past two decades, consider the following chart:
 
Back “In the Day”    Now
Shared family land-lines  Personal smart phones in pocket or purse
Yellow Page ads  Search engines & directories (Google)
Brochures & storefronts Professional Website
Send hard copy intro info (3-4 days) Send email w/ educational links, incl. video (3-4 minutes)
Bring in hard copy forms Fill out online forms
Snail mail drafts  Email drafts as attachments, with track changes
Meet every 2 weeks Meet more often – weekly, online
Predictable structure  Choreography of variety of online & FTF communications
Joint and Caucus meetings Joint/Caucus; FTF/Online; Synchronous/Asynchronous
Mediation room as art form Zoom and Skype online meetings
Attorney Review & Finalization Attorney also online, PDF, Docusign, eFiling
 
Note that these “digitization opportunities” over the past two decades have not taken place as part of any grand plan, but, rather, incrementally as each new digital opportunity “earned its place” in our expanding tool-box of effective online mediation approaches and resources.
 
ODR as Access to Justice and Resolution
 
What is now taking place with the NCSC and Pew is, however, much grander than this incremental development of nifty digital widgets over time. In fact, the NCSC and Pew now see ODR, particularly online mediation, as a key to providing access to both justice and resolution moving forward. 
 
There are both challenges and opportunities for family mediation as we move forward online. For starters, it is unlikely that anyone (either participants or mediators) will be “forced” to participate online. It is likely, at least for the next decade, that “brick and mortar” options will likely continue to exist.
 
And it should also be acknowledged that mediating online is simply not the same as mediating face-to-face (FTF). Online, I warily suggest to students, that they are a click away from disengagement, so be on your best rapport behavior! Further, we find online that participants seem to have somewhat less patience (think eye rolls) and stamina for extensive online joint problem solving. When the going gets tough online, it is commonly easier and more productive to schedule short respective online caucus meetings. The bottom line here is to expect more (in number) total meetings online, that are shorter meetings, and a likely increased shift to rely on online shuttle diplomacy.
 
Intriguingly, online mediation does offer great promise for being able to mediate in circumstances where one or both parties are not comfortable being in the same room together, e.g., when there is concern about abuse or violence, and for participants with physical disabilities. Mediating online is, of course, also greatly valuable when participants are at a distance. It has been noted that, no one has every gotten a bloody nose online. It has also been said that, “when you are online, no one knows that you are a dog.” Actually, now, with Zoom and Skype, participants do tend to come to understand that canine mediators are in fact dogs, however, participants may still not detect that you, canine or human, have your pajama bottoms on during an online mediation meeting!
 
Online Mediation Strategy
 
Fundamental psychological and communicational issues, such as rapport development, trust and credibility, are just as important in the online environment as in the FTF environment. It is generally true that people are still people online, however, the way that participants get to know us these days has changed. Participants will likely have either found us online, or will have vetted us online (in response to a partner’s or professional’s suggested mediator selection). More and more, mediators are wisely including valuable informational videos on their websites to give participants both valuable information and, even more importantly, a real sense of what this mediator might be like to work with.
 
In addition to the myriad of digital communication options available to us, there are new options for mediation strategy. For example, I have long thought that the primary determinant of how facilitative vs. directive a mediator is depends on one’s assumptions about the total time resource available to a mediation. For example, if we assume that we have only one hour to make mediation magic, we are likely to rather soon become more directive, if not evaluative, seeking an agreement result to the mediation. On the other hand, if we assume ten or more hours to weave our mediation magic, then we are likely to be more facilitative and elicitive, for longer, before more pointedly wondering or suggesting what might work. It is thus intriguing to ask what are our program and professional assumptions for the total amount of time needed and available for quality online family mediation, and what agreement-reaching strategies are most effective in this presumed resource context?
 
One huge opportunity that exists online is our ability to infinitely educate participants about relevant issues in a quality way “without the taxi meter running” and available 24/7 for participants. This education might have to do with how to best communicate or negotiate, or it might be with regard to developmental needs of children, or about child support guidelines, spousal support, property division, tax issues, you name it. Given our unlimited ability to educate participants at essentially no cost, it seems incumbent upon mediation programs and practitioners to develop the most capable and valuable family mediation educational resources possible.
 
Normative Solutions
 
A great opportunity online is our ability to elegantly and timely share “normative solutions” (solutions that have worked for similarly situated others) with mediation participants. After having mediated nearly 2000 family cases, I am fully convinced that most participants in family mediation do NOT need to win nor prevail. What is far more motivating for participants, I find, is participants’ unwillingness to lose, and their unwillingness to be a fool.
 
People understandably want to be smart in their family decision-making. And they often psychologically also need a face-saving rationale for compromising and agreeing. This is where solutions that have successfully worked for similarly situated others are potentially so valuable. When people get the sense that their arrangements are within a relatively normal range, they feel normal, rather than abnormal or uncertain. Importantly, they at least feel like they are not a foolish chump.
 
A Choreography of Communications
 
In truth, nearly every family mediation case is now done online to some extent. In this respect, every family mediation case is now an online case, and it is proper and good that we ask ourselves how we can best integrate online and FTF communications as a whole to best get the job done. 
 
In this sense, family mediation has become more a “choreography of communications” (both online and FTF) than a discrete physical event. And we now need to ask ourselves, how we can most effectively choreograph all of our communications to best assist each participant to both be at their best and reach agreement.
 
Functions to Accomplish

One way to think about our family mediation services becoming more digitized, and our new choreography of communications, is to identify the specific functions to be accomplished in family mediation. One can then ask which of these functions can effectively (or more effectively) be accomplished, in full or part, online? Among these functions, thinking broadly about family mediation, are the following:
 
       Mediator professional education (e.g. this newsletter and article!)
       Mediator organizational networking (ditto)
       Mediator utilizing professional website as both storefront and information resource center
       Focused geographic marketing
       Offering an online newsletter
       Auto responding to a contacting participant
       Thoughtfully responding to other participant
       Ongoing communications with both participants and other professionals
       Infinitely educating clients
       Confirming process understandings and Agreement to Mediate
       Scheduling meetings
       Beginning rapport development w/ both parties
       Beginning rapport development w/ each individual party
       Identifying full agenda and points of agreement
       Best framing open issues as problems to be solved
       Providing timely and ongoing correspondence and drafting
       Privately (and asynchronously) describing new possibilities for consideration
       Distributing and reviewing final agreement
       Signing Agreement
       Filing Agreement
       Offering satisfaction survey
       Contacting participants downstream to check-in
       Mediating future modifications
       Offering annual or other periodic review
 
What About Artificial Intelligence, Models & Exemplars
 
Intriguingly, it does not seem that anyone in the world of family justice is particularly interested in taking online mediation to the full extent of artificial intelligence (AI). In truth, this could likely be done! What a mediator does, more than anything, is ask questions. Essentially, a family mediation is a conversation in which a mediator asks between 50 and 500 questions, tailoring the specific sequence based upon ongoing respective participant responses. It is very possible that a computer could be well trained to ask all these right questions and then, based upon participant responses, in time be trained to also suggest most likely best solutions. A bit scary, I know! Especially the part about mediators being replaced!
 
Nonetheless, courts do not seem to favor AI, viewing it as diluting their authority and judicial discretion, and mediators are not particularly thrilled with full AI either. Not many professionals yearn to be replaced by a computer. There may, however, be a sweet spot best answer here, which is the happy medium of asking a sufficient number of questions (think perhaps 10-30 questions) to be able to determine roughly what is relevant and likely worthy of participant consideration. The mediator may then ask participants to review, select and edit from among relevant exemplars and to also add in their own additional improving new provisions so as to create a unique agreement.
 
Case Flow and Participant Journey
 
There is a tendency, intriguingly for both professional mediators and technologists (perhaps the only thing that we have in common?) to focus on rather mechanistic concepts in thinking about online mediation services. However, in our seemingly endless pursuit of “better, faster, cheaper,” we should not ignore each participant’s very human “journey experience” through the family mediation process, be that process online or FTF or both.
 
Rather challenging in these regards is the fact that, in most divorces, for example, participants are in rather different psychological positions entering the mediation process. Whatever family mediation processes we design, be they online, FTF or a hybrid mix, need to thus be flexible enough to address the true psychological states and needs of participants, even if they are in very different psychological places. Remember, “people are still people online” (unless they are a dog).
 
Are New Online Mediation Ethical Standards Helpful?
 
Finally, the ubiquity of online communication, not only for mediators and participants, but also for their children, creates fascinating new ethical and practice issues for a mediator. For example, should a mediator be encouraged to explore each participant’s preferred modalities of communication? Should a mediator seek to define with participants how they would like to best communicate online, both during the mediation and, perhaps, following the mediation. And what about the children? Should participants be encouraged to consider reaching agreement as to their respective ability to contact their child(ren) online (in one form or another) while the child(ren) are with the other? And if so, during what hours? And what about a child contacting a non-residential parent digitally? And how might these communicational understandings relative to their children change over time?
 
Here are some sample new Ethical Standards for Online Mediation that may be added to existing AFCC, APFM and other family mediation ethical standards:
 
Recommended New Standard – Online Communication During and After Mediation
 
A.    Discussing Mediation Communication Options

As part of a mediation process, be the mediation face-to-face, or online, or a mixture of the two, mediators should discuss and seek best means of communicating during the mediation with all participants. 
 
In addition to meeting face-to-face, mediators and participants may communicate via online video, as part of online mediation platforms, by email, attachments, text, phone and other means. Mediators and participants are encouraged to utilize a range of communicational options in support of their mediation. It is understood that the confidentiality of mediation communications shall not be lessened nor determined by a selected modality of communication. To the extent that participants jointly prefer communicating in certain ways during a mediation, those preferences should generally be honored by the mediator. To the extent that participants have different preferences for how to communicate during a mediation, the mediator shall seek to best satisfy those interests in an overall balanced way.
 
B.    Including Online Communication Understandings in Substantive Agreement

As part of a mediation process, be the mediation face-to-face, or online, or a mixture of the two, mediators are encouraged to raise issues of how participants, particularly parents, can best communicate with others, including children, both during and following the mediation. 

Understanding these issues tend to evolve,Mediators are advised to assist parents in particular to discuss and set clear expectations for their children’s online access and communications, both with a non-present parent and more generally. In the best interests of their children, parents are encouraged to consider adopting common online access standards for their children.
 
C.     Reaching Understandings About Post-Mediation Communications

As part of a mediation process, be the mediation face-to-face, or online, or a mixture of the two, mediators are encouraged to raise issues of whether and how participants can best communicate directly following the mediation process.

As determined by the participants, future communication agreements may or may not be included as part of a formal binding mediation agreement. Participants having clear expectations about future communications can assist with mediation agreement implementation and assist to pre-empt future conflict.
 
Conclusion
 
Family mediation has steadily become more and more digitized since the early 1980s. These developments have been driven more by mediation participants wanting to take advantage of evolving, affordable and convenient communicational technologies of the day than due to any particular attraction to online technology by most mediators. In fact, mediation and the courts have been playing “catch up” when it comes to providing mediation participants with the flexibility, convenience and economy available through online services. 
 
New, however, is the powerful commitment of the NCSC and Pew. It is now clear that the time for family mediators and family mediation programs to randomly dawdle in online technology is over. It is time for the mediation profession and mediation programs to fully embrace online opportunities and to develop best possible online mediation systems for the full range of family mediation participants. ODR and online mediation are about both access to justice” and “access to resolution.” We need to come together to design most effective “online journeys” to assist participants to grow and fashion their most capable agreements, for both participants and their child(ren)’s benefit. The time for embracing the online environment and developing most capable online family mediation systems and services is now.

Jim Melamed co-founded Mediate.com in 1996 and has served as CEO of Mediate.com ever since.  Mediate.com received the American Bar Association's 2010 Institutional Problem Solver Award.

Before Mediate.com, Jim founded The Mediation Center in Eugene, Oregon in 1983 and served as Executive Director of the Academy of Family Mediators (AFM) from 1987 to 1993. Jim was also the first President and Executive Director of the Oregon Mediation Association (1985-86).

Jim's undergraduate degree is in in psychology from Stanford University and his law degree is from the University of Oregon.

Jim has received the following awards: The Oregon Mediation Association's 2003 Award for Excellence; The Oregon State Bar's 2006 Sidney Lezak Award of Excellence; The Association for Conflict Resolution (ACR) 2007 John Haynes Distinguished Mediator Award; The 2012 Academy of Professional Family Mediators (APFM) "Getting To Yes" Award; and The APFM's first APFM Outstanding Mediator Award (2018).



Additional articles by Jim Melamed
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., Mediate.com or of reviewing editors.
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