I Have a Dispute to Mediate -- Should I Use Artificial Intelligence as My Mediator?
We are all hearing about artificial intelligence—the exciting ways it can process a lot of data quickly and the troubling ways it can use bad data just as easily as good data, as well as create “hallucinations” based on misperceiving what are facts and what are not.
Still, with its reported efficiency and accessibility, one might wonder whether trying AI as a neutral to resolve a dispute might be better than using a human mediator. AI does not appear to possess some skills, however, that seem essential to serving successfully as a mediator -- at least not yet.
Lack of Empathy - AI cannot understand and empathize with emotions. Often in a dispute a party first needs to feel heard and understood about why the dispute exists before the party is ready to discuss solutions. Part of being able to consider the other side’s perspective and considering compromises, is first having confidence that one’s own perspective is heard and appreciated.
Thinking Inside the Box - AI works on predefined algorithms. Although we can input facts to get AI to develop options, AI may not be able to think outside of those defined limits, to ask further questions to understand whether a fact not yet shared might expand potential solutions to a dispute.
Limited Creativity - AI has also been shown to be less creative than humans. Hence, while all the information and issues presented in a dispute may have been presented in monetary terms, for example, only a human mediator might consider a completely different means of settling the dispute -- such as an apology and some collaborative endeavor that hasn’t been explored yet and benefits both parties. This solution might be something that was only raised by one party’s off-hand comment during their discussions. AI might have dismissed the comment as irrelevant.
Can’t Build Trust and Create Calm - another aspect to a successful mediation is often that the parties trust the process and the mediator to protect the process. Often a party is comforted by the mediator’s commitment to stay with the parties until they have explored all viable solutions to their dispute, for example. AI is unlikely to make such a commitment. Sometimes, it is simply the calm and confident demeanor of the mediator that allows a person to stay calm and focused and consider the other party’s ideas, thereby leading to a settlement. At this point, I doubt an AI mediator would generate that kind of calm and focus in a party.
What Happens to Confidentiality and Privilege? - There is also another concern with using AI as a mediator: the potential for risk to the confidentiality and privileged nature of the process that is otherwise available to mediating parties in the U.S. and other countries. Disclosure of information to AI may lead to waiver of those rights because AI generally uses the information received as data for improving its process. It integrates the information into its database. This “disclosure”, if authorized by the parties, may be viewed as a disclosure to a third party waiving all rights to protect such information and to keep it from discovery in a court proceeding in the unfortunate event that the mediation fails. Courts will no doubt be evaluating this issue around the world; it’s a concern for now.
So should we completely forget about AI? No. It can be useful in a mediation. A mediator and the parties can use AI to develop options, sort data, and organize issues, for example. It can also help locate outside information the mediator seeks (since it is built into most search engines nowadays). Perhaps one day AI will be a better choice, but for now, a human mediator, equipped with AI, seems the better choice to resolve our human differences.
Mediation Can Help You Outswim the Sharks.
When I was a little girl and other little girls were playing with dolls, I was dictating letters to an imaginary secretary, parroting no doubt, my father‘s actions. When I started my undergraduate work, I still assumed I would be taking over my father‘s manufacturing company and took the necessary business administration classes in accounting, economics, industrial psychology and management. In law school, I actually liked my classes on the UCC, corporations and partnerships, and business. All of this background was very useful in my work as a judge on civil commercial cases. To this day, I enjoy reading the business pages in the newspaper and especially Harvey Mackay’s column, entitled Outswimming the Sharks. His recent article in the Minneapolis newspaper was especially relevant to my current work as an alternative dispute reolution professional working on commercial disputes.
His column focused on the importance of compromise in business decisions. (His entire column in Minneapolis StarTribune, February 19, 2024 can be found here.) I had many commercial cases while on the bench and have conducted at least as many commercial mediations. All mediations are eventually about compromise. As Mackay points out, when you compromise “... No one gets everything they want and be prepared to come to a different outcome than you had originally considered.” That is good advice that attorneys should heed and be sure to give to their clients before mediation.
Mackay is astute in pointing out that one should also “recognize when not to compromise“ and to never compromise “at the cost of honesty or integrity.” As in all mediations, “it is knowing your nonnegotiables, and being clear about what you are willing to give up.” That is very important in mediation and are key points for good lawyers to clarify with their clients ahead of any mediation. In commercial mediations, I always explore the possibility of whether the parties are likely to be doing business with each other in the future. This is often the case and calls for a special approach to the mediation and the final settlement, It also introduces creative possibilities for solutions. Many business relationships are ongoing. As an example, in construction cases, many of the same subcontractors are used routinely, particularly on very large, multi-phase projects. Also, companies that manufacture goods are often working with a limited number of suppliers. These and many other businesses continue ongoing relationships, even after the flare of litigation. They can and should reach settlement to maintain those on-going relationships. Mr. Mackay also recognized this dynamic.
Good lawyers will also tell their clients to follow Mackay’s sound post-mediation advice. When the parties compromise and these cases settle, Mackay recommends they “ spit out the sour grapes, and instead look at the fruit of their labors.” This is good advice for all involved who want to continue being successful in their business. At a certain point, one must focus on the future, no matter how frustrating the past.
Safety in Mediation
Mediation is almost always less combative and much easier on the parties than the adversarial nature of a trial. That is not to say that it is unusual for some people to become disgruntled during a mediation. They can be angry about the first demand or the first offer of the other party, for example. Often parties unfamiliar with the process can become frustrated at the time it takes to reach resolution. It is just human nature.
Unfortunately however, there are times when someone becomes so angry that safety of the parties, lawyers or mediator becomes a concern. This can come up unexpectedly in many different kinds of cases. For example:
There may be an elderly litigant being bullied by a close family member into settling the probate of her sibling’s estate and one becomes concerned about the possibility of more serious elder abuse occurring in her home. This situation prevents an uncoerced voluntary decision .
Just as dangerous is a situation in which one of the parties is a victim of domestic abuse and the abuser is actually in the room, pressing the abused to settle the case, involving perhaps an accident. Because of fear of the abuser, the abused’s decision to accept or deny an offer is not totally voluntary.
A party may be present for “support” of a spouse in a sexual harassment case with a claim against the spouse’s boss. It becomes painfully clear that the “ supportive spouse “ has an explosive temper. This is often directed at the mediator if the “ supportive spouse”can not bully his or her way to what the bully deems to be an acceptable settlement.
Each of these situations involves a person with what has been called a “high conflict personality”, creating a potentially dangerous situation.
Because its hard to reason with someone when they are in a highly agitated state, the mediator, lawyers and other parties must handle the situation carefully . They must first ensure their own safety.
Keeping everyone apart as much as possible is much easier if the mediation is held online. Everyone can be put into separate rooms, virtually. This remains a problem however if the highly aggressive person is in the same room and sharing the video screen with the affected party. The mediator must then take control of the situation and make sure that any settlement is truly made voluntarily.
If the mediation is in person, everyone should always be kept in separate rooms, physically far from each other, even on different floors, if available. If, however, the agitated party is a family member or friend of the affected party, the mediator can ask the non-party “ supporter” to step out of the room for a few minutes so the mediator can talk directly to the affected party to determine how best to proceed. It is the affected party’s case and self determination of the party should be determinative. The lawyer should be of help as well.
If there is a fear of someone potentially having a weapon, the mediator or the attorney may be able to contact someone in the courts or elsewhere (for example, a library) to secure a couple of conference rooms for the mediation at a location where people must go through a metal detector as they enter the building.
Every situation is different. How to handle it best depends upon the target of the aggression. It is still possible to have a successful mediation, however, in most instances. A mediator can help defuse the situation if they have been trained in how to handle a “ high conflict personality”. Under most circumstances there are ways to deal with these situations so the mediation can continue and be successful. Still, safety must be the top priority. If it becomes too dangerous, the mediation can and should be adjourned. This is definitely the exception and not the rule, but it is important to think about ahead of time and develop ways to handle matters, “just in case.”
Teaching is the Best Teacher
I recently had the opportunity to help teach a four-day mediation course for professional mediators at the University of Washington School of Law. The participants were a mix of law students, HR professionals and lawyers. Each time I have the opportunity to teach mediation, I feel like I gain new perspectives about both the value of mediation and best practices.
Perhaps it’s the same as any teaching opportunity, in some respects: I am forced to put into words some amorphous sense I have about a best practice and, in so doing, I better understand exactly why that best practice works. But, in teaching mediation, there’s more to it than that.
A lot of mediation training involves mock mediations and, as I watch and guide learners, I often see different tactics that I wouldn’t have considered. I notice how certain words or approaches work for one person that don’t for another. For a mediator to be effective a mediator has to establish rapport and trust with the participants. To do so, a mediator has to remain sincere, impartial and trust-worthy. How one person conveys that is different from another, but there’s no doubt that being someone other than oneself will never work. To give meaningful feedback I have to explore with the participants what could have been a more effective way for them to have addressed the situation and not how I might have addressed it. I’m forced to step outside myself and my own patterns to consider how another person communicates and what would have helped that person better communicate in a specific situation. I learn from their perspectives.
I also have to practice intentional listening and being empathetic, to be a meaningful observer in such mock mediations. When the participants are looking for guidance, I owe them intense focus and concentrated consideration so that the feedback I offer is of value. Those are skills that help me be a better mediator too. Moreover, when people are first mediating, there is more opportunity to observe how misunderstandings happen and how difficult it can be to hold open space for the parties to find their own path forward if the mediator lets his or her ego get in the way. Seeing what doesn’t work helps me think about what works better and why.
Perhaps, most important, however, is how I gain a renewed belief in mediation and its incredible value. There is no other legal process I know of that really focuses on the possibility of exploring all possible solutions to a conflict and allowing the parties themselves to decide what would be the best way forward in a relatively fast and efficient process. Of course, sometimes we’re talking about a zero-sum situation, where the parties are just negotiating a dollar amount, but often there are win/win aspects that allow for a better outcome for both parties if they are the ones making the choices. Even in mock mediations, I get to see the shifts that happen to parties from adversaries into two or more people working towards a common goal. It’s often possible to identify a moment when that transformation happens, but it’s impossible to predict. I have learned that my key job as a mediator is to keep the space/opportunity open for that shift to happen. And when it does, it’s like clouds parting and the sun coming out. The participants in such trainings observe that too, many for the first time, and often cannot believe that such shifts are possible. Lawyers who have always been in adversarial proceedings are often most dubious (although those who have mediated know mediation can work).
Sometimes mediations, even mock mediations, feel like magic to all concerned. What other legal processes allow for such transformative moments? I’m grateful to witness those moments, every time. And teaching about mediation and the possibilities it offers not only reminds me of its benefits but also impresses me with the power of people to come together and resolve their differences, if given the tools , like mediation, to do so.
Mediation with Multiple Parties
Mediation is most often thought of as a negotiation between two parties and the mediator. Sometimes a party can include several people or company representatives and/or insurance representatives. It is also vital to ensure that the person with authority to “make a deal” is present. But not every litigation involves a dispute between two sides.
Considerations When There Are Multiple Parties
Your strategy on how to resolve your client’s dispute becomes that much more complicated when you are representing one of multiple parties to a mediation. There could be multiple plaintiffs and/or defendants. Whomever you represent may need to negotiate not only with the parties on the opposite side, but with parties similarly situated. This can be done, especially with a good mediator who understands the competing interests at stake. Mediation allows multiple parties to have a dialogue in a way that isn’t necessarily possible in more formal proceedings, like a trial.
Because multiple parties on the same side of the case may each have different definitions of success for resolution, a skilled mediator can talk to each party individually to explore what their particular wants, needs, and wishes are for a settlement. Armed with this information, the mediator can help all parties formulate a mutually agreeable position which can then be presented to the other side. Because getting everyone on the same page may be more complicated if some of the parties are from different cultural backgrounds, multi-party mediations become even more challenging when one or more of the parties is from another country and culture.
It is wise to choose a mediator who is used to dealing with various cultures and has international experience. Negotiation may look very different where these parties are from. Many countries do not have dispute resolution tools like mediation, and therefore, even lawyers from other countries who might be at the mediation will not be familiar with how mediations work. They also may have different views on a typical outcome to a dispute. Still, if everyone at the mediation is there in good faith to try to resolve what is undoubtedly a multi-layered dispute, mediation can be successful. Be vocal with the mediator prior to the mediation about any concerns and choose a mediator with international experience when there is an international component – or even just parties from different cultural backgrounds. They have techniques to help bridge these gaps and keep interested parties moving towards a solution to their differences.
Don’t Give Up before You Start
“This case is never going to settle! ”
Most mediators have entered a mediation with one or more of the parties saying this. What a dreadful way to start a negotiation. Giving up before they even start. There are many reasons parties may feel that way. They feel hopeless, misunderstood, bitter, afraid, or angry or they could just be posturing. The reality is, however, that upward of 90% of cases actually do settle before trial. So how do they get walked off the ledge?
First, I want to make sure they really would like to settle if they got a decent offer or if they really are” hell bent” on going to trial. So I ask them, “Are you really interested in settling your case today or not?” Although there may be a legitimate reason to prefer trial I haven’t seen it yet, if mediation brings an acceptable offer to the table. What the parties are really saying, when they speak about a case not settling, is that they are certain they will never get all of what they want so “why waste time and money on a fruitless attempt to settle." But they have rarely thought through the alternative. They are giving up before they start. If, instead, they expressed an interest in settlement for acceptable terms, then there is reason to move forward. I remind the parties that in a mediation they will have the final word in deciding what the terms of settlement will or will not be. In a trial or arbitration, in contrast, someone else will decide their fate.
I prefer to start with what the parties, not counsel, believe are the most important facts. Why do they feel they are entitled to win, whether they are plaintiffs or defendants? What may seem most important to me, as the mediator, might not be the most important to the parties. What emotions are involved? Hurt? Disgust? Anger? The parties often feel the other side “just doesn’t understand” or they attribute malice or greed to the other side. To get the parties to look objectively at their case, they must understand that they have to try to separate out their negative emotions.
Moving forward we explore what if any legal issues are still in dispute? In my opinion, it’s not until the mediator has all this from both sides should the parties be asked for any monetary or others proposals to start the negotiation process. The parties should be reminded that negotiations are just that. It’s compromise. No one gets everything they want but they can get to an agreement.
There are a lot of things to be considered before running head first into trial such as the cost of motion practice, depositions, experts, and time away from work and family. The process of mediation may take longer than hoped, with the mediator going back and forth exploring different options, but in the end it is time well spent, both economically and emotionally for the parties. Remember, over 90% of cases settle and it’s almost 100% better that they settle earlier rather than later so DON’T GIVE UP.
Mediation Takes Too Long and Is Very Costly -- Fallacies about Mediation
Not long ago a friend complained that his lawyer was pushing him to resolve his business dispute through mediation. He said it would take forever and cost too much money. A relative who was going through a divorce thought that mediation would be a free way to resolve things and that it would take less than a day. How can these views be reconciled? What do people really think – or know – about mediation? How often is it confused with arbitration?
Simple facts about mediations:
Although not free, it is still the best way to resolve disputes in a cost effective manner. Still, it is important for clients to understand that they will have to pay not only the fees of their attorney, but also pay for or share the cost of the mediator.
Mediation may last more than a few hours, but it is efficient. Although most mediators will set aside most of a day for the actual mediation, there are many instances when the matter will not resolve and the mediator will continue to try to settle a dispute for days or weeks. Typically though – we are not looking at a mediation that last years.
The parties decide their own fate. Unlike arbitrations, the mediator does not render a decision. As previous blogs have pointed out, whether the parties decide to resolve their dispute is totally in their own hands. No one – not the mediator or the attorneys or even the court where the matter is pending – can force parties to settle.
Attorneys should be prepared to explain what a mediation is, and the pros and cons – and costs – of a mediation. Attorneys should not assume that even sophisticated clients understand the intricacies of mediations.
International Mediation is Worth Considering, Even for Parties Not Yet Bound by the Singapore Convention
Many have argued that mediation isn’t the right choice for resolving cross-border disputes because one cannot compel enforcement, in the same way it is possible for arbitral awards using the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention”). The New York Convention is in force for 168 countries and therefore is relied on regularly by parties seeking to enforce arbitral awards across the globe. Without a similar convention signed by most countries, people argue, mediation has limited value in a cross -border context.
That’s why many international mediators were very excited with the adoption of the United Nations Convention on International Settlement Agreements Resulting from Mediation (the "Convention on Mediation" or "Singapore Convention") on December 20, 2018. Many believed it would do the same thing for mediation, as the New York Convention did for arbitration, making mediation a genuine alternative to protracted litigation.
The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are in the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval, or accession. The United States still needs Senate approval. Right now, just eleven countries have acceded to the Singapore Convention: Belarus, Ecuador, Fiji, Georgia, Honduras, Kazakhstan, Qatar, Saudi Arabia, Singapore, Turkey, and Uruguay.
But that does not necessarily mean that mediation is a non-starter for disputants trying to decide how best to resolve a cross-border dispute. Besides ease of enforcement there are other reasons for considering mediation:
1. The Singapore Convention will be adopted broadly eventually - It is anticipated that many countries will soon adopt the Singapore Convention.
2. Cross-border mediation, by its nature, results in outcomes parties are more likely to honor without court intervention-Cross-border mediation is worth considering even without such a convention. Mediation empowers the parties to a dispute to find a solution that works for them. No one can be forced into a mediated settlement. Because the parties must agree to a mediated settlement, rather than it being a decision reached by a third party, such as a judge or arbitrator in a court ruling or arbitral award, the respective parties are generally more willing to honor their commitment without a party having to turn to a court or other tribunal to compel such behavior.
3. Mediation allows for outcomes that many courts couldn’t compel or even enforce – Because the parties decide how to settle a dispute in mediation, there is greater flexibility about outcomes. Non-monetary remedies are possible. One party can agree to do or not do something. In many countries, courts are not allowed to compel a party to do or not do something. But the parties can make such an agreement and it may be just what the parties agree is the best way to resolve their dispute, without court intervention.
4. Mediation often allows the parties to maintain an on-going relationship – Because mediation is so much less adversarial, the parties may end up continuing to work together. That, again, leaves options open for settlement that wouldn’t exist without the parties continuing to work together. Such outcomes also create greater incentives for the parties to honor their commitments to one another in a mediated settlement, without the hassle and expense of involving a court to compel compliance.
Of course, as a mediator, I am eager to see the Singapore Convention adopted widely. It will undoubtedly be a useful tool in enforcing mediated settlements and encouraging the use of mediation globally. Still, as noted above, there are many reasons to consider using mediation in cross-border disputes today.
Just a Little Bit of Respect - How Acknowledging Cultural Differences Can Be Key to Successful Mediations
Good mediators know just how important it is for parties to respect one another to be able to resolve disputes. When there has been a dispute, respect often no longer exists between the parties. It is important for counsel and the mediator to make sure that at least for purposes of the mediation the parties are respectful of each other 's positions and respectful about the business or person with whom the parties are negotiating.
Counsel for the parties may also have differences with opposing counsel or the adverse party. All of these differences need to be set aside before mediation. Counsel need to help their clients understand this.
It is also important to understand how culture impacts one’s perception of respect and what is expected. One must ask oneself, what considerations must be taken into account? It is important to understand the value systems of all involved.
Although respect is important in a domestic setting it is even more important when one of the parties is from another country. For those counsel who have represented foreign parties, you know how vital it is that customs are followed. Even in a domestic setting it is important to show respect, for example, to someone who might be older or to someone who has a key role in a company. In an international settings small and large moments can really matter. This encompasses everything from where people are seated at a mediation, how people greet one another, whether in person or by zoom, how business cards are presented and how people are addressed.
In her series of books Kiss, Bow or Shake Hands, author Terri Morrison provides advice on cultural differences to businesses who are conducting global operations. The State Department issues guidance on dealing with different cultures for its employees who are stationed around the world. We have also offered guidance in an earlier blog post: Context Matters; Avoiding Missteps in Cross-Border Mediation. There are many resources to aid counsel in how to recognize what constitutes respect and to be able to advise his or her client appropriately. Recognizing cultural differences and the importance of respect is key to a successful mediation.
Avoiding Court Crowding through Mediation - Experiment in Washington State Comes to End
When the COVID-19 pandemic hit and several people suddenly died in a nursing home in Western Washington, the state government realized that life as we knew it was going to be interrupted. Society was presented with a big risk if people were not able to shelter in place, despite the risk of losing jobs too. A state-wide eviction moratorium was implemented, recognizing that, once it was lifted, the courts might be overwhelmed with eviction cases.
The state therefore adopted legislation requiring that county-run dispute resolution centers develop mediation programs throughout Washington to respond to that anticipated flood of cases and mandated that any landlord initiating eviction proceedings had to (a) first notify their local dispute resolution center and (b) notify the tenant of an option to mediate a potential payment plan for repaying back due rent. If the tenant wanted to mediate, then the landlord was obliged to attend and mediate in good faith before the landlord could pursue eviction. The program also required the landlord to offer a reasonable repayment plan to the tenant, with monthly payments that in any event could not exceed one-third of the monthly rent the tenant had been paying. For the past two years, this program has been in place and many tenants and landlords successfully reached agreement regarding payment plans. Others worked out mutually acceptable move-out plans when a payment plan wasn’t possible, which also avoided evictions and stains on tenants’ credit ratings, along with reducing the wait time for landlords to recover possession of their units or homes and prepare them for reletting. Some landlords loved the program; some did not. Some tenants didn’t understand the potential benefits of such a program and didn’t elect to participate. Not all mediations resulted in settlement.
Effective July 1, 2023, the program sunsetted throughout Washington State. Statistics are still being gathered on how many people avoided losing their leases or becoming unhoused because of this program. Moreover, there is no doubt that, because it was a pilot program, participants of all kinds – mediators, lawyers, landlords, tenants and administrators – had ideas on how the program could be better operated if it were to continue or be replicated.
As a mediator who gave many hundreds of hours of my time to the program, however, I can confidently say that it changed some people’s lives. I know because participants told me it did. Some marveled at how mediation could turn conflict into a constructive conversation about a solution and started thinking of ways they could use mediation in other parts of their lives. Some couldn’t believe that there was a process where they could tell their stories. Some loved avoiding the stress and strain of legal proceedings. Some didn’t care much about the process at all but were just grateful that the intense stress they were carrying about evicting a family in need or being evicted, ended with the mediation – that the parties had reached agreement on a solution that all were confident was capable of being performed and allowed them to put this unpleasant circumstance behind them. For landlords with high default rates, the resolution of disputes in less time than the courts were going to take was sometimes a big relief. For administrators and court judges who would have had to deal with the flood of cases absent this pilot program, they were grateful that such a flood was avoided or at least mitigated by the program. For me, the most life changing aspect of participation was to observe the compassion both tenants and landlords showed for one another. It was my honor to have been given the chance to help our community with a more compassionate response to an extremely difficult situation for all concerned. Although it wasn’t perfect, it certainly was better than the alternative of doing nothing to try to keep people secure and healthy throughout the pandemic.
Mediation cannot change the world, but it, along with other forms of alternative dispute resolution, can change conflict into resolution one dispute at a time. I look forward to future opportunities to help our community create more just and compassionate solutions in other areas of conflict through mediation.
ADR is Changing with the Times – We Must Too!
For most of us, our world and practices changed drastically and quickly during the pandemic. We learned how to go on something called Zoom to meet with friends, family, and clients. No longer were we conducting mediations in closed conference rooms. Many practitioners were forced--kicking and screaming--to learn about technology. We adapted. We learned. Many court appearances, especially for motions, are now virtual. Many practices have been changed forever. Clients and lawyers found it more convenient, saving time and money.
Although not in as widespread use as it is today, in 2009, The National Center for Technology & Dispute Resolution (NCTDR) issued the first Online Dispute Resolution (ODR) Standards. In response to developments in online dispute resolution technology and attitudes towards it, the NCTDR in collaboration with The International Council for Online Dispute Resolution (ICODR) developed updated ODR Standards in 2017. More recently the leadership of both organizations approved an updated version in April 2022. The following are a few of the relevant highlights.
ODR Standards require that ODR platforms and processes must be:
1) Accessible. ODR must be easy for parties to find and participate in, and not limit their right to representation. ODR must be accessible to all parties, minimize costs to participants, and be easily accessed by people with different types of abilities.
2) Accountable. Human oversight of (1) the originality of documents and the path to outcome when artificial intelligence is employed, (2) the relative control given to human and artificial decision-making strategies.
3) Competent. ODR providers must have the relevant expertise in dispute resolution, legal matters, technical execution, language, and culture required to deliver competent and effective services and those services must be timely and use participant time efficiently.
4) Confidential. ODR providers must make every genuine and reasonable effort to maintain the confidentiality of party communications in line with policies that must be articulated to the parties.
5) Equal. ODR providers must treat all participants with respect and dignity. ODR must seek to enable often silenced or marginalized voices to be heard and strive to ensure offline privileges and disadvantages are not replicated in the ODR process. ODR must strive to ensure on an ongoing basis that no technology incorporated into ODR advantages any one party.
6) Fair and Impartial. Throughout the entire proceeding, ODR must treat all parties equitably and with due process, without bias or benefits for or against individuals or groups or entities. Conflicts of interest must be disclosed in advance of ODR services.
7) Legal. ODR providers must abide by, uphold, and disclose to the parties, relevant laws and regulations under which the process falls.
8) Secure. ODR providers must make every genuine and reasonable effort to ensure that ODR platforms are secure. Data collected and communications between those engaged may not be shared with any unauthorized parties.
9) Transparent. ODR providers must explicitly disclose in advance and in a meaningful and accessible manner:
a. The form and enforceability of ODR processes and outcomes
b. The risks, benefits, and costs of participation for each party
c. The sources & methods used to gather any data that influences any decision by artificial intelligence
d. Timely notice of any data breach and steps to prevent reoccurrence
As the COVID pandemic ebbs, it is increasingly apparent that ODR is here to stay – perhaps not for all mediations but for many. These updated standards illustrate the evolving nature of ODR and the importance of mediators remaining ready to evolve with it.
Dealing with “Difficult” Parties
Have you ever been in a mediation when one of the parties rushed into the session and started complaining about everything that had gone wrong that day – and then seemed to be carrying that frustration into the mediation session? What about a party that starts out with saying that he really doesn’t believe in mediation or that settlement is possible and, although he is “of course” willing to participate, he really doubts it will be of any use? Perhaps you’ve experienced a situation when one of the parties in a mediation doesn’t seem to speak at all and, even when asked a direct question, remains silent and turns to her attorney to speak on her behalf? Or you’ve experienced a party’s attorney who offends other parties by re-explaining everything anyone says to his client and what his client says to everyone, as if they cannot understand for themselves.
Lisa Savitt and I recently had the pleasure of presenting on the topic of dealing with “difficult” parties like those above at the International Association of Lawyers (UIA) 31st World Forum of Mediation Centres in Frankfurt, Germany. It was a lively discussion among the attendees, with so many willingly offering insights from their own experience. Lisa and I and our co-panelist, Javier Fernández-Samaniego of Madrid, Spain and Miami, Florida, also offered some suggestions about how to approach such situations. We reminded attendees that the key goal must be kept in mind: helping the parties explore all potential solutions to their problem – not to change the way one party or another behaves.
We pointed out that “difficult” behaviors can arise from several sources:
Emotions – Someone is afraid, anxious, frustrated, etc.
Dynamics between Parties – The history between the parties makes it difficult for them to come to the table with an open attitude.
Strategy – A party thinks some disruptive behavior can show strength or shake up a party or situation.
Legal Traditions – Behaviors can be linked to the parties’ roles and behaviors they think are expected of them based on their backgrounds.
Cultural Differences – “Rude”, “difficult”, and “disruptive” behavior in one culture can be seen as relatively normal in another. Maybe the actor is just acting in a way that would be entirely appropriate in another culture.
We also shared some of our tactics for addressing such situations to make sure that unwanted behaviors don’t destroy a mediation:
Prepare ahead of time to anticipate differences in legal traditions and cultural differences. It may mean that pre-mediation sessions will take some extra work to develop a strategy to discuss these differences or perhaps deciding it is appropriate to keep the parties separated rather than having joint sessions.
Listen, listen, listen! Try your best to determine what the source of the behavior really is
It’s not all about you! - Remember that such behaviors may have nothing to do with you.
Remember the importance of self-determination. If this situation really raises concerns for someone, for one reason or another, is it appropriate to continue and/or does something or someone have to change for this to work?
Explore the source of the behavior with the actor.
Consider whether this is your problem – maybe your own background makes you hypersensitive to a behavior that doesn’t bother anyone else.
Consider your own ideas about the source of the behavior and test that out.
Consider ways to address the underlying source (rather than the behavior itself).
Consider ways to ask the actor to modify the behavior – the actor may not be able to change emotions, but can change actions.
Inquire with others about the effect on them, recognizing they may be more or less affected than you are.
Assess the ability to mitigate the impact on others to get the mediation back on track – can it work or does this end the prospects for resolution?
Next time a mediation includes a “difficult” party – we hope that all attendees at the conference and our blog readers feel better prepared to face the challenge and move ahead towards a positive outcome.
RULES here, RULES there, RULES RULES EVERYWHERE!
There is no substitute for reading, knowing, and following the rules of one’s trade, and that includes work in mediation. A lawyer must follow the rules no matter where one practices law and a mediator must follow the rules no matter where one performs mediations. Now that we are all working virtually, practicing law or performing mediations frequently takes lace across many borders of states or countries. There is no substitute for knowing the ethical rules of the road, whether by statute, court rules, laws of other countries, or treaties, wherever the work occurs. Ethical requirements may vary widely from one place to another.
That said, although the wording may vary, there are many consistencies in best practices for facilitative and evaluative mediations everywhere.
1) Self Determination. This is a basic tenant of mediation no matter where you or the others are located. The mediator is not an advocate for either side. The mediator should be sure the ultimate decision on settlement of the case is the parties’ – that it is voluntary and non-coerced.
2) Impartiality. A mediator is often referred to as a “neutral.” This word is used both as a noun and a verb. It is descriptive of the mediators’ position and how they must act and also how they must be perceived. Mediators must be careful not to fall victim to their own actual or implicit biases and to recognize bias in others. If mediators find they have biases for or prejudices against either side , whether before or during a mediation, and they feel they can no longer perform their duties fairly, they should withdraw.
3) Conflicts of interest. A conflict can arise in a number of ways. For example, it would be a conflict if the mediator is related to or in a business relationship with one of the parties. The mediator should not accept the case. However there are instances in which the conflict may not be as apparent. In such instance, the mediator must nevertheless disclose the conflict or potential conflict and its potential implications, even if the mediator believes he or she can be fair. The mediator must give the parties a chance to discuss the issue privately. If the parties then all agree to go forward with the mediator anyway, the mediator may continue. Even if not always required under applicable laws or rules, putting the disclosure and waiver in writing is advised.
4) Appearance of conflict or bias. Mediators must be conscious of the appearance of conflict or partiality for or against a party. Perception can be as dangerous to the process as an actual conflict of interest. In such cases, some state statutes mandate following the same process required for actual conflicts.
5) Competence of Mediator. Mediators must maintain competence in technology used for mediations. This is one component of competence — of equal importance to knowing ethical and other rules of the relevant jurisdictions.
6) Competence of Parties. If at a mediation, a mediator suspects a party is incompetent due to drugs, alcohol or mental condition, the mediator should make sufficient inquiry to decide whether the mediation should proceed. If it’s determined the party is not competent for any reason, the mediation should not proceed.
7) Confidentiality/privileged. There are different rules on confidentiality depending on a mediator’s jurisdiction and the jurisdiction of the parties. In many states, for example, if the parties are in different rooms, virtually or physically , and one party shares information with the mediator, the mediator may not disclose it to the other side without express permission. The mediator must keep the confidences of each party. Often confidential communications of mediation parties are privileged by law, as well. That means a mediator must keep facts disclosed in mediation confidential from all others, including the court if called as a witness, unless all parties agree otherwise. Typically confidentiality requirements are found in the rules of evidence for the relevant jurisdiction but sometimes are set by statute or other law. Mediators must check the rules of any and all relevant jurisdictions because the amount of protection may vary.
Closer to home, Minnesota State Supreme Court ecently adopted rules for mediation that set the standard for Minnesota:
Mn Rule of Civil Procedure (MRCP) 114. 07 regarding Use of Evidence in Court states in part, “Without the consent of all parties and an order of the court,… no evidence from an [alternative dispute resolution] process or any fact concerning the ADR process may be admitted in any later proceeding involving any of the issues or parties.”
MRCP 114.08 Neutrals Duty of Confidentiality states in part “notes, records, impressions, opinions, and recollections of the neutral are confidential, and the neutral shall not disclose them to the parties, the public, or any third persons, unless (1) all parties and the neutral agree …or (2) disclosure is required by law, or professional codes …”
In all instances, the mediator must explain the scope of their confidentiality to the parties.
THESE ARE BASIC and ELEMENTARY practices that should be applied by every mediator with the primary and prevailing practice being to always check the rules, HERE, THERE and EVERYWHERE a mediation will take place.
Japan Adopts New Mediation Act and Sets Path to Accede to Singapore Convention
Japan’s New Mediation Act
On April 21, 2023, Japan announced the adoption of a Mediation Act, which lays the foundation for a robust mediation framework within the country. It provides that a Japanese court must enforce an international settlement agreement, once a party has submitted the agreement and documents proving that it is an international settlement arising from a mediation. To avoid such enforcement, an opposing party must establish to the court’s satisfaction that one of a limited number of grounds for declining enforcement has been established--such as:
Incapacity of a party;
Invalidity of the agreement under applicable law;
The mediator’s serious breach of applicable standards; and
Bias-related issues.
The Mediation Act was adopted to enhance Japan’s mediation infrastructure and encourage the use of mediation in cross-border disputes in Japan. The Act is seen as an indicator of Japan’s interest in leading the global mediation community to promote mediation as a means of resolving cross-border disputes—to demonstrate Japan’s mediation-friendly culture.
One of the additional significant implications of Japan's Mediation Act is its alignment with the United Nations Convention on International Settlement Agreements Resulting from Mediation (commonly referred to as the “Singapore Convention”). The Singapore Convention was signed by 56 countries, including the United States, to promote easier enforcement of mediated settlements across borders and now countries are beginning the process of ratifying it. The Singapore Convention became effective September 20, 2020, but only applies to any country six months after that country has deposited with the United Nations its ratification, acceptance, approval or accession. Right now, just eight countries are parties, but many will become bound in the coming years. Japan may be able to be at the forefront of the countries acceding to the Singapore Convention, with this new Mediation Act.
As an aside: The U.S. has not yet ratified the Singapore Convention. The American Bar Association has urged the Department of State to seek accession by the Senate of the convention as soon as possible, but the exact timeline for U.S. accession remains uncertain.