Colin Rule is Director of Online Dispute Resolution for PayPal. He is currently Co-Chair of the Advisory Board for the National Center for Technology and Dispute Resolution, and is the author of Online Dispute Resolution for Business, published by Jossey-Bass in September 2002.
In my opinion, there can be a fine line between balancing and impartiality. It is important in some respects to balance, like when Susan mentions helping even out technological imbalances. An example of this is InternetBar's PeaceTones Initiative (peacetones.org) This is focused on persons in underdeveloped nations and conflict zones, where access to technology is not always possible. ODR is very important in this process to keep all involved parties content. A mediating company in this relationship should feel ethically responsible to allow equal access to technological resources to ensure a fair dispute resolution process. Basically, a mediator should be aware of technological imbalances and attempt, without sacrificing impartiality for the issue at hand, to rectify the imbalance
I want to throw out a new thought. How many of you mediate ODR disputes other than the eBay consumer types? I am thinking about big, meaty disputes such as breach of contract, employment disputes, etc. where a lot is at stake and emotions may be running high. What type of platform do you use for these disputes? Thus far, most of the comments seem to be focusing on typing over the Internet. If no visuals are used, how does the mediator open up communication channels to encourage the participants to share personal, confidential information? In other words, how can the mediator engender trust and rapport so that the participants feel comfortable enough to share information about their underlying interests and provide something that the mediator can use to help the parties craft a resolution? I mention these questions because if the mediator cannot establish trust and rapport in an ODR setting, how does that affect party self-determination, quality of the process, and perhaps the mediator's competence?
I want to throw out these types of ethical concerns and ask if any others come to mind because most of the discussions I have seen during Cyberweek 2009 and thus far in 2010 relate to confidentiality, impartiality, costs, and conflicts of interest.
Great discussion, Colin and company!
I wanted to build on the comments Eric Cissell made which also raised great questions about 'neutrality.'
He asked us about if "online neutrals have to be more careful who they befriend, or become contacts with, on various social networking sites such as LinkedIn, Facebook in order to avoid the perception of a conflict of interest? Great question! It makes me wonder about our assumptions within the field for f2f intervenors--that they will be 'non-connected' and therefore neutral. That is the dominant expectation in some cultures but not all. So, as ODR gives us exponentially more access to handling disputes across cultures online, what will be the ethical dilemmas raised when some assume that intervenors can be 'connected' to parties and others do not?
(Leah Wing, U. of Massachusetts, Amherst, USA)
I want to add some additional information to the Facebook discussion. I checked with a colleague of mine who also is interested in whether mediators should “friend” lawyers and others who may then appear in a mediation with that person. My colleague has done some research regarding judges and I understand a Florida ethics opinion says a judge cannot "friend" lawyers on Facebook if the lawyers may appear before the judge. On the other hand, a South Carolina opinion states that a magistrate judge may be a member of Facebook and have "friends" who are law enforcement officers and employees of the magistrate's office, as long as they don't discuss anything related to the judge's position as magistrate. Apparently, the South Carolina opinion did not address the specific question raised in the Florida opinion.
By way of analogy, therefore, it seems that a mediator should not “friend” potential participants who will hire mediator to conduct a mediation. The Model Standards of Conduct talk about not only a conflict of interest but the appearance of a conflict involving past or present, personal or professional relationships. This scenario sure seems to fit the bill.
I'd like to hear more from others.
. Marc Galanter's famous article "Why the Haves Come Out Ahead" argued that repeat players, those who use a system like the courts or arbitration develop relationships and knowledge and leverage that is not available to the first time or "One Shot" user. I wonder if this dynamic also plays out in ODR spaces? If so, where would we see the effects of it, and how might we guard against disadvantaging the "newbie" or non-institutional player? I'm going to think about it a bit and see if I can come back with a more concrete example, but perhaps others might have one that could serve as a working example of the problem?