Embracing Online Dispute Resolution



Covid-19 may have done what many of us have been trying to do for years – make Court the alternative dispute resolution process for couples working through a family law issue.  For many jurisdictions, including mine, courts have been unable to optimally operate during lockdown due to a lack of electronic and online processes and capacity. (Some would say they have never been able to optimally operate due to a lack of online processes).


Meanwhile, mediators and collaborative professionals have been able to forge ahead in their work by maximising one key hallmark of those processes – their flexibility – and by using audio-visual conferencing.


I have long toyed with the use of online dispute resolution but, like many, lockdown has given me the impetus to really embrace this way of assisting families through their issues arising out of separation or divorce. It is early days but, so far, my experiences of taking collaborative practice and mediation online have been pleasingly positive. Here are some of my early observations:


It starts with good set up – getting yourself set up with a reliable audio-visual platform, good microphone, speakers and monitors (I currently use 2 but my optimal is 3!) makes for less stress and greater ease. Setting up a work space which is quiet, has good light and an appropriate background should also not be underestimated. Be sure to choose a platform that allows you to use breakout rooms and, to help things run smoothly, set these up in advance of each meeting.


Update Agreements – updating your agreements to include the use of audio-visual conferencing will help draw your mind in on potential issues in order to get ahead of them. Such issues may include: recording; who is present; everyone ensuring they have the appropriate technology in advance; the importance of everyone arriving on time, dressed appropriately(!) and in an appropriate location.


Pay attention to what you can't see – special attention will need to be paid to the confidentiality of the process. Unlike an in-person meeting, you won’t be able to see who is present in the background. This has been raised as a concern by some of my clients. I am including clauses in my agreements around this and making it part of my practice to check in on this at the beginning of the meetings and after any breaks. This serves double duty as it also reassures parties that I am alone. 


Practice – roping my family in to practice in advance of my first online meeting and, again, whenever I wanted to try out some new tools or settings, was invaluable for giving me the confidence in the platform and in my ability to operate it. I also suggest practising with your client so they feel comfortable with what is likely to happen.


Be Vulnerable- I am not the techiest person. My tech guru, drawing on his past knowledge of my limited tech ability, has been known to ask me if I have plugged in an errant piece of equipment. Given my understanding of my deficiencies in this area, I get apprehensive when trying out new technology. I decided just to embrace this, be vulnerable and open with parties and get them on board with a “we are all in this together” way of approaching any tech issues. The response I have had is that everyone is understanding, usually relieved the tech isn’t on them and more than willing to help out. This has helped build rapport and trust. It also contributes to creating a climate of it being acceptable to not have to hold all the right answers and that we are able to work together to try things out!


Keep It Very Simple– Clients (and other colleagues) will likely also be apprehensive about using an audio-visual platform. I have found that an approach of keeping things very simple works best. I send out a warm but very basic invitation email to attendees. Anything more than what is absolutely necessary can invite confusion so I have deleted almost all the instructions that come with the standard email invite produced by my AV conferencing platform. I simply indicate that all they need to do is click on the link provided, make sure the volume on their speakers is up and follow any prompts that then follow. I make sure they know how to contact me if it goes pear shaped for them. We send out a reminder the day before with the link again so attendees aren't having to search for it. Nothing more. Everyone has made it onscreen so far.


Screen Sharing / Onscreen White Boarding is awesome -  enough said.

Clients like it – My clients have liked working together in this way. Some were concerned about being able to access the meeting but found it straight forward. Some expressed relief not to have to be in the same room with the other party. Others have appreciated the convenience of not having a commute or parking hassles. My sense is that all have been more relaxed than I anticipated, likely because they are in their familiar and comfortable surroundings.


Rework Your Housekeeping – no one needs to know where the toilets or your fire escape route are but they do need to know things like what to do if the conference connection is lost, what will happen with breakout rooms and clear roadmapping of how the platform works.


Set an Alarm – I have always been very organised around my schedule for the day ahead but I didn’t appreciate how much I relied on my meeting guests turning up to my office to trigger the actual start of a meeting! As a result, I’ve had to set alarms on my phone to warn me of an impending online collaborative meeting to ensure I am there well in advance.


There will be glitches - In a number of my online meetings there has been some tech glitch from screens freezing to not being able to move someone into a breakout room. The glitches have been quick to work out and move past. Getting frustrated or allowing them to tarnish the experience serves no one. Accepting there will be glitches, being able to laugh about them and maintaining a positive, can-do attitude throughout has been critical to getting through them and keeping things on a constructive track. 


Agenda and process are more important than ever – In one of my first online collaborative meetings, an agenda wasn’t reviewed prior to the meeting. I suspect this was because we had become very preoccupied with organising how we would meet online and turning our minds to how to ensure that operated well. As a result, we completely overlooked 'standard operating procedures', such as the agenda! My client and I turned up expecting the agenda would be as had been foreshadowed at the last meeting and ended up taken by surprise when a new matter was put on to the table. It wasn’t devastating to the meeting but it was a good reminder that even though you are using a different medium, you can't lose sight of the usual protocols within a collaborative process.


My biggest fear was not realised- on reflection, I think one of the mental obstacles I had around making the move to using audio-visual conferencing in my mediation and collaborative practice and, for that matter, in my everyday meetings with clients, was a fear that something would be lost in not being in the same room with people. I was concerned that rapport building would be difficult. I was worried I wouldn’t be able to read people’s non verbal cues as effectively and would lose the 'feeling' in the room.


This hasn't been borne out. I can observe people and listen with far greater focus. Seeing all the attendees before me at once on the screen allows me to see what is happening “in the room” and register people's body language easily. One challenge has been becoming very aware of how much of what I do is non verbal - a touch on the arm, a moving in to lean closer to someone, a timely pouring of water and passing of tissues- but, notwithstanding a few moments of discomfort as I adjust my ways, it has been surmountable.

These are just some of my early observations about moving my dispute resolution practice online. I'd love to hear your own. The learning will continue but I already know mediating and collaborating in the online realm will continue in my own practice beyond lockdown.