Family Mediation and ODR Platforms
with May-Britt Kollenhof-Bruning, Kitty Duell, & Bryan Hanson
In 2009, the Dutch Legal Aid Board and Juripax conducted a pilot for online mediation in divorce cases in order to verify whether online mediation is a good way to settle divorce cases. The aim was to conduct the divorce fully online. 80 divorcing couples participated in this pilot. Subsequent data-analyses were performed by both the university of Tilburg, the Netherlands and the university of Leuven, Belgium. After the successful pilot the Dutch Legal Aid Board decided to include online mediation for family law cases in their service offerings. The original studies with most important findings can be found here
The discussion aims to provide answers to the following questions:
• How and when can online mediation be applied?
• Do the professional mediation principles apply to both offline and online proceedings?
• What is the role of online tools in creating a more equal and level playing field and enhancing party autonomy?
• Can online mediation be effective if parties are not physically present?
• How can trust be built online - and how can mediators adapt their offline skills to the online environment?
Join Bryan Hanson, Kitty Duell and May-Britt Kollenhof-Bruning for an exploration of the pros and cons of using ODR in divorce cases - and how mediators and clients can benefit from it
Kitty Duell is a Certified International Mediation Institute Mediator, Court accredited (Family) mediator in the Netherlands and Minnesota USA, and received her Master of Advanced Studies in International Mediation at the Institut Universitaire Kurt Bösch in Switzerland.
She is a certified Juripax online mediator and a Board member of the Association of Online Mediators in The Netherlands (possibly the first worldwide), Founding member of the Academy of Professional Family Mediators, Lector for foreign delegations for ‘Restorative Justice', Lector on behalf of ‘Quality assurance’, and interim ‘complaint officer’ for Netherlands Mediation Institute (NMI), Initiator en coordinator platform ‘Mediation in Criminal Law’, Deputy for NMI & Council of recommendation NMv (Dutch Mediators Association), Coordinator Chamber of Commerce mediation-project. Receiver of the Dutch Mediation Award. She is the author of e.g. International (Parental) Child Abduction, a comparison of mediation models. K. Duell (2009)
May-Britt Kollenhof-Bruning is a Master of Dispute Resolution, ODR trainer and cofounder of Juripax (www.juripax.com), Netherlands. May-Britt comes to the field of ODR with extensive expertise in the area of ADR. She completed her formal mediation training in the U.S. and has served as a mediator and arbitrator in, mainly, complex commercial disputes. As an independent contractor she has mediated hundreds of online disputes for various companies, including eBay. May-Britt has published extensively on ODR and online mediation.
Can even the die-hard couch potato get a divorce without having to move?
Will the threshold to divorce become too low?
That is an interesting prompting question in terms of the outcomes of making the divorce process more accessible. I am not so sure that creating opportunities to engage in convenient, yet constructive conversations through technology would necessarily change couples' tendancies to get divorced. I believe new technology will simply open up new ways to allow people to facilitate the divorce process that is less destructive than may have been perceived in the past.
That being said, in some instances, such as relationships that entail a large amount of abuse, a low threshold is important to allow those with terrible situations to leave them behind. If knowing that you can get divorced, and have the safety of online tools to help create a barrier and your ex, it may allow the decision to leave to be that much easier. This is actually one of the contexts that I feel technology can really help us out as mediators when the main issue impeding the mediation process is not distance.
Platforms such as Juripax could allow divorces between couples where a history of abuse is present to take place without putting either of the parties in danger of that abuse happening during the mediation. It may also hinder the psychological affects and power imbalances that this abuse can produce by allowing the parties to connect from the safety of their home or other place of comfort.
What do others feel the pros and cons may be if we start integrating ODR into our divorce proceedings? I encourage you to try out the various platform offering simulations during Cyberweek to get a sense of what it may look like.
In addition to the advantages Bryan and Brooke have cited, one very practical aspect of having the email correspondence is a record of exactly what was said, what each party asked for, already reduced to writing. The mediator does not need to rely on memory or try to read cold notes to reconstruct the primary issues of each party. This seems to be an advantage to the mediator and ultimately to the parties.
As for the notion of bypassing, or eliminating emotions, text-based ODR may provide a buffer... giving time and space for each party to process their emotional reactions in their own time and privacy.
I think online divorce mediation is an excellent concept. It seems that so many people in the midst of divorce are in a hurry to just get everything done and move on and I think online mediation is a great way to keep the process moving. I do wonder how parenting plans are affected in this process. It seems that the necessity of a parenting plan in a divorce involving minor children may complicate the online divorce settlement just because of the importance of the issue. I also see how online mediation it could be helpful with modification of parenting plans. It seems there is the possibility in which parents who have been divorced for several years have moved into separate cities or states and need to make modifications to parenting plans and choose to mediate. I think it would be helpful to do these modifications online versus trying to schedule a time to meet somewhere when it could be taken care of rather quickly online.
I'm really appreciating when the online interaction is described as being different than face-to-face interaction. Not better - not worse - but different.
The differences in the interaction encouraged by the medium can be used strategically by a savvy mediator to help the parties move past impasse and on to the agreements they say they want.
I understand that this particular study was looking at a fully online process. It's great that is becoming available. Yet what is also helpful will be online approaches that can be integrated with in-person processes to support, extend and leverage face-to-face meetings. These tools may be easier for ADR professionals to adopt, and be adopted more quickly, because they're not complete replacements for known in-person processes, but are integrated with them.
Yet, for the couple who's never gotten divorced before, and hasn't had that experience, a fully online process may seem very attractive to them. And if there's a way for the online mediator to be able to monitor the online interaction and look for opportunities for when an in-person meeting may serve those parties well, this could be the best of all possible worlds.
I feel that online mediation may be counter intuitive to the goals of family mediation. Often time at least one side has the goal of trying to repair the relationship and I feel that online communications interfere with that. There is no way to replicate physical discussion through an online session regardless of what technology used. I think in some situations online dispute resolution can be helpful but in areas where the ideal goal may be to just get families back together it seems flawed. I would much prefer to be able to be in the same room with two family members because this is a dispute that probably has a very deep background that will probably be better understood in a personal setting. I would prefer the ability to be able to read their emotions and body language to try and get what the person's story. I think that family mediation is something that has special circumstances that may warrant caution for online technology.
I think that if two people are getting a divorce and it is "simple" in terms that they just no longer wish to be together and can agree mutually on the terms of the agreement, online divorce would be a preferable path of which to take. However, in cases which warrant a lot of dispute over money, custody, houses, cars, etc. I think it would be much easier if they go to a court to settle in person. I think too much would get lost in the black and white of a typed screen in cases such as those.
Also, in cases of abuse or neglect parties may not feel comfortable sharing their story online. I also think for situations like this it would be hard to build up a level of trust between the mediator and party if they are not sitting in the same room.
Thanks to all for your great contributions so far.
I am a strong supporter of online tools and mediation be considered as one of the available tools in the mediator's toolbox with merits of its own and to be applied depending on the specific cirsumstances.
The aim of the pilot we conducted was not to prove that all cases have to be conducted fully online. For the sake of the pilot we however asked all mediators to do as much as possible online in order to be able to determine the appropriateness of online mediation
Ashley raises an interesting point in relation to abuse cases. Ashley, what are your assumptions with this? Is your starting point that parties ought better not communicate directly with each other or simply that online communication, with or without the help of a third party, does not seem appropriate for this type of cases?
I have read everyone 's responses and all of you have made some very valid points. In my opinion ODR in divorce proceedings can make the divorce process run a lot smoother. It provides less tension between parties, which as a result provides for better negotiations and faster solutions. I believe we are moving into a "microwave" society. With so much to do daily and so little time, people usually want things to move along quite quickly. These are the people ODR divorce mediation would most likely appeal to. Kitty, "the die hard couch potato" can get a divorce without leaving the couch, and would probably love it more than face to face divorce because he would not have the hassle of having to leave the couch.
Just picking up on some of the different comments in this string, there seem to be differing views on whether 'getting a divorce' is an emotional exercise or a legal/procedural one. As a whole, both the emotional and legal sides matter. ODR can help in both of these areas.
The emotional side
On the emotional side, ODR can provide another forum or channel to help the parties work through their issues and hopefully come to some agreements about what their new reality is going to look like. Platforms like Juripax are well suited to help the parties identify these issues and then work through them with the help of a neutral.
If body language or face-to-face communication is held to be a vital part of this process, then it can be obtained through video or face to face sessions, depending on the circumstances. But the dispute resolution process doesn't need to happen entirely this way. These efforts can be mixed with asynchronous online interactions too. (I'd expect for many cases, this will be all that's required). The opportunity to do some work online will be seen by users as a 'feature' and not a limitation.
The legal side
On the legal side, ODR can help support parties' struggles to force their real-life relationship breakdown into the legalistic and procedural format required to get a divorce in the formal sense. Experiencing the divorce is tough to begin with and the cost and complexity of our courts only make it worse. If we can use ODR to make these processes more accessible or less expensive, why wouldn't we do it?
Avoiding the all-or-nothing false dichotomy
In the divorce context and most other dispute resolution contexts, ODR doesn't have to be all-or-nothing. It can serve as another tool that mixes well with other processes and forms of communication.
I've found that the all-or-nothing approach really plays into the hands of those resisting these types of innovations since they only need to identify one or two potential problems or limitations with ODR in order to make persuasive arguments that we are not ready to start using it on a larger scale. The mixed approach can help ease this transition along by overcoming potential problems or objections.
First of all I want to thank, just like May Britt, you all for you contribution to the discussion. What makes it even more interesting is the more cautious ODR approach of Ashley. It has become a long answer and I have tried to be inclusive as possible.
Please give another reaction where you feel I missed your point, or my English is not up to speed!
@ Bryan: My initial contribution was more a teaser, where I will now try to get to the next level:
ODR especially in domestic violence/abuse cases can be very constructive. The Juripax system is built in such a way that parties have no mail on their computer (which can be hacked into), but on a secured channel where only parties themselves can log in. This way the psychological affects and power imbalances can be reduces to a minimum. Another thing is that, in case one of the parties is in a safe house the address can be kept private.
@ Brook: The system is furthermore build in a way that with every message you want to send, either as a mediator or a party, it will ask the writer if he/she wants to really send the message or want to store it as a draft so it can be reread/edited before sending. Which brings a solution to too hasty sending of emotional primary/initial reactions.
@ Anita: Indeed the ODR forum gives you a complete secured online dossier. Not as much as proof, but more a structured way to build agreements and follow somebody’s train of thought.
@ Alexis: The ODR professional (using the system with chosen automatic reminders) can make sure that the process is moving, also will make sure that nothing will be forgotten. Like May-Britt mentions: most ODR professionals will not make use of a 100 % online mediation, but will go for a more hybrid form. In case of parenting plans the mediator will definitely make sure that both parents comprehend the consequence of the decisions for themselves, the other parent and the children.
In case of evaluating and modifying of parenting plans ODR is less straining on the respective parents.
@ Jeff: I really appreciate the ‘different’ term. ODR will not be for everyone or for every case. In fact this is in line with mediation (not being for everyone in every situation).
It may be the case that you make only use of the online intake, which helps the clients to structure their thoughts, wishes and interest. In other cases you want to, maybe because of the distance in location, keep the face-to-face meetings to a minimum and proceed with the practical side online, or every other approach for you or the clients to decide on. The more free and open you can look at ODR as one of the may tools you have available in your toolbox the better you can use them in service of you clients.
@ Shea: Indeed ODR is no way to replace face-to-face interaction and will not be for every mediator. It can be a tool for making people realize what they are saying/writing and how it comes across. It can give them new insight in how they relate to one another and the world and their own values and believes.
@ Ashley: In every case ODR can bring structure in the subjects, which are under dispute. It will filter out the different interest and motives of the clients, so they can focus on what is at the heart of the dispute.
@ Tamikia: Like I mentioned before to Bryan: My initial contribution was more a teaser for the discussion than anything else. With the high divorce rate nowadays, even without ODR, people seem not to stay in a relation that does not feel good to them anyway.
How to manage cases where there has been a history of abuse is a very important issue. Thank you so much for addressing it here! I confess that I have not read the study sponsored by the Dutch Legal Aid Board and Juripax. I was, however, the evaluator for the initial phase of the Distance Family Mediation Project in British Columbia, Canada, in which various information and communication technologies were used to provide family mediation services.
In British Columbia's project, the importance of very careful violence screening before engaging in mediation -- and on an ongoing basis throughout mediation -- was stressed. It was observed that, while online methods can have a dampening effect on emotions during mediation, it can also provide a false sense of security. The mediators did not need to be concerned with immediate physical dangers during mediation, but it was more difficult to help a party to prepare and implement a safety plan over the course of the mediation. Sometimes the parties were not very distant from one another. And, if the mediator was distant from one or both parties and was unfamiliar with the resources available in the parties' communities, it was difficult to assist the parties in accessing the necessary supports during mediation. In general, it was determined that cases involving recent and/or severe abuse are not appropriate for online methods.
The Distance Family Mediation Project has just completed another phase of their project, this time focusing on the use of video conferencing in family mediation. Stay tuned for some really fascinating results! Also, as part of the project, they will be releasing an updated version of "Mediating from a Distance: Suggested Practice Guidelines for Family Mediators". I was fortunate enough to write a discussion paper for the revised guidelines about a particularly interesting observation ... that, in general, the greater the complexity of a dispute (and clearly, a history of abuse would be a complicating factor) the more interactive does the technology need to be to conduct a mediation. Although it's a controversial point (especially amongst ODR officianados!), face-to-face methods are arguably the most interactive of all methods.
Thanks for the opportunity to contribute to the discussion on this!