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ODR Tips and Tricks

by Giovanni Matteucci

May 2020

Giovanni Matteucci

COVID-19 pandemic, everybody home. Internet becomes the highway of contact with the world. And, in mediation, mass transmigration on the ODR - Online Dispute Resolution (in Italy ruled by Legislative Decree 28/2010, art. 3, paragraph 1, point 4, with proceedings defined by the regulation of each mediation provider  [1]  ).

ODR, whose effectiveness some mediators strongly doubt.
 

A mediator writes: “ … I still believe that mediation works on people’s emotional and inner mood. We try to understand the parties in their real interests and to make them work to find a meeting point. The hope to solve the crisis period with online services will be self-defeating, I think. When this ends, how are we going to say ‘mediation, our proceeding is different’? We have already shown it works through a screen”.
 

Another one: “ … to facilitative mediators, who try to re-establish communication, who work with empathy and non-verbal communication, everything is very difficult through a screen; … it is likely easier for evaluative mediators: they express their ideas until they formulate one or more proposals for the agreement … . And the biggest fear is to cross a no return point: once this emergency is over, how can we say that mediation must be managed in person with the parties, and not on-line?”

 

Another one: “ … to facilitative mediators, who try to re-establish communication, who work with empathy and non-verbal communication, everything is very difficult through a screen; … it is likely easier for evaluative mediators: they express their ideas until they formulate one or more proposals for the agreement … . And the biggest fear is to cross a no return point: once this emergency is over, how can we say that mediation must be managed in person with the parties, and not on-line?
 

In disputes mainly based on character and psychological matters (e.g., divorces), the change of the glance, of the breath, can hardly be caught through a screen. Moreover, its interposition (mainly for those not accustomed with it) may cause psychological obstacles and longer time reactions. But in online proceedings, the ability of the experienced mediator emerges, as well as in in-presence ones.

Some basic tricks may be useful:
 

1 - the quality of the computer (even a smartphone) is crucial; a fixed microphone, placed near to the pc, helps; if the speakers are not sufficient, use earphones;
 

2 – the face must be well enlightened, possibly by sunlight through a window placed in front or on the side (and not behind); otherwise, a warm light lamp is necessary, at less than a meter from the speaker, at face height (better, two bulbs in front of the speaker, one on the right and one on the left, and a third one above; a trick well known to photography fans); glasses, which reflect direct light, create an obstacle to communication;
 

3 – non-verbal and paraverbal communication; use the same tricks as in in-presence mediation, even hand gestures; the neutral must not appear an emotionless talking head  (if not in the lips), for the whole duration of the meeting; they must not recall HAL 9000, the supercomputer on board of the spaceship Discovery in the movie “2001, A Space Odyssey”;
 

4 – avoid rumbling sounds, which greatly worsen the hearing of the voice; therefore, do not speak from rooms with bared walls (and, needless to say, from places with noises, which disturb the hearing of the speech);
 

5 – visual communication, through the display of documents or written lists of the main points of the disputes, helps; a scanner at hand could be useful;
 

6 – the “setting” (also in the ODR) must be adequate: too white or too dark walls, together with incorrect light, create an alienating effect; warm-toned colours are preferable; a bookcase, a painting, a slightly varied object, behind the speaker, help to create atmosphere (the book “Getting to Yes”, Penguin Book, second edition, with the title in red, in full sight behind the mediator, would be top-notch);

 

7 – the quality of the connection is crucial, a breakdown can lead to the failure of the meeting; alternative ways of communication, such as e-mails and telephone, would be particularly useful, in difficult moments. Of course, information such as e-mail addresses and phone numbers must be acquired before the connection, or at the very beginning of it;
 

8 – rhythm and duration of the proceeding are as relevant as face-to-face meetings; it would be particularly boring to wait in front of a grey screen, while the mediator manages an excessively long caucus with the other party (pay attention to the connection: if the confidential meeting is also heard by the ruled out party, it could be a disaster);
 

9 – signatures of the report and their validity; if all those who share the meeting have a certified e-mail address and digital signature, the problem is manageable; otherwise, there can be several solutions;
 

10 – blockchain and smart contracts are next to come, especially in international commercial mediation, with the possible enforceability of the agreements, thanks to the Singapore Convention on Mediation, into force from September 12th, 2020.
 

In April 2020 the Government of Hong Kong announced the “COVID-19 Online Dispute Resolution (ODR) Scheme”, which aims to provide speedy and cost-effective means to resolve disputes, especially for those involving micro, small and medium-sized enterprises.  The process is a multi-tiered dispute resolution mechanism where the parties will first attempt to negotiate their disputes, followed by mediation and if that does not result in settlement, then subsequently to arbitration for a final and binding award  [2]  .

 


[1] Legislative decree n. 28, March 4, 2010, Art. 16, c.3 – “The mediation provider … shall submit to the Ministry of Justice its regulation and code of ethics … . The regulation must provide for … the online procedures that may possibly be used by the mediation prvider, so as to guarantee the security of communications and the confidentiality of data”.

Due to the Coronavirus pandemic, the following legislation came in force: Legislative Decree 18/2020, converted into Law 27/2020 , art.83, c.20-bis: “… mediation meetings may in any case take place electronically with the prior consent of all parties involved in the proceedings. … In the event of a telematic proceeding the lawyer, who signs with a digital signature, may certify the handwritten signature of his remote-connected client, written at the bottom of the record and the conciliation agreement. The document relating to the mediation proceeding, carried out electronically, will be signed by the mediator and the parties’ lawyers with digital signature for the enforceability of the agreement provided for by article 12 of the Legislative Decree no. 28, March 4, 2010”.

[2] https://www.doj.gov.hk/eng/public/blog/20200413_blog1.html

Giovanni Matteucci is a commercial mediator and trainer.



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