At one time, Online Dispute Resolution (ODR) was considered the future of dispute resolution. With the arrival of COVID-19, the future has rushed up to meet us. Even before the pandemic, the benefits of ODR—convenience, comfort, efficiency, and more equal power distribution—were gradually increasing its popularity. But the arrival of COVID-19 has caused this popularity to spike, transforming ODR from a convenient novelty into an absolute necessity for dispute resolution.
But ODR is subject to the limitations of its online platform. Dispute resolution methods may not function online the same way they do in person. With this difference of function in mind, I will assess the effectiveness of ODR by analyzing its ability to host an effective mediation. What makes a mediation effective is subjective, to an extent, and varies with the circumstances and style of mediation practiced. With that said, an effective mediation has some base qualities: the parties can engage in dialogue, introduce topics and interests they would like to discuss, and come to a self-determined and mutual outcome (if they so desire). These qualities are contingent on the parties trusting the process and the mediator because, without trust, the parties will be unwilling to cooperate.
With this precondition of trust-building in mind, this article will examine two significant challenges to online mediation. First, the article determines whether two ODR platforms—text “chat rooms” and videoconferencing, respectively—allow the mediator to build trust with participants. Second, the article considers whether these platforms are capable of hosting evaluative mediation and transformative mediation. Although the observations mostly rely on academic articles and studies, they are supplemented this research with several informal discussions with lawyers and mediators. This analysis will find that, though online text-based and videoconferencing platforms face obstacles in hosting mediation, knowledgeable and attentive mediators can overcome these obstacles.
Justin Monahan, "Enemy at the Gates: Online Dispute Resolution in the Time of COVID-19" (2021) Directed Research Project: Law in a Post-Pandemic World.