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

http://www.juripax.com/EN/references.php

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

 

Moderator Bios:

Kitty Duell

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

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.

 

______________________________________________

Return to Cyberweek 2012 Homepage

Views: 1629

Reply to This

Replies to This Discussion

Very interesting to learn about the conclusions of the latest DFM project. Please help me understand better by clarifying the following points

Seen the nature of your study, I assume that when stating ''face-to-face methods are arguably the most interactive of all methods'' you refer to ''face-to-face'' meetings conducted online (e.g. skype and video) or did you include mediations in the physical presence of parties in the study?

Also when referring to complex. What is your definition of complex? do you mean substantially complex or emotionally complex (may be both)?

Thanks so much for sharing more insights

My apologies, May-Britt ... I can see I wasn’t very clear there.  By “face-to-face”, I meant the traditional in-person meeting format where everyone is physically in a room together.  Some of the mediations in this most recent phase of the DFM Project did end in sessions with everyone physically present, but this was not something that received much attention in the pilot project.  I was really referencing a statement I made in the discussion paper on the relationship between technological interactivity and dispute complexity ... really an opinion on my part that traditional face-to-face methods are highly interactive, and not a research finding from the project.

And, about what makes disputes more complex ... that could be a whole other topic on its own!  I think of complexity in terms of the factors that contribute to making dispute resolution more difficult and, in my view, both substantial issues and emotional factors can make disputes more complex in this sense.   There are others much more knowledgeable than I who could speak to that question, though!  I was just addressing a general observation that the mediators made during the pilot project ... that the more factors that added to the complexity of the dispute, the greater seemed the need for more interactive technologies.  It is just a hypothesis, however ... so far, and untested one.  But food for thought, don’t you think?



May-Britt Kollenhof-Bruning said:

Very interesting to learn about the conclusions of the latest DFM project. Please help me understand better by clarifying the following points

Seen the nature of your study, I assume that when stating ''face-to-face methods are arguably the most interactive of all methods'' you refer to ''face-to-face'' meetings conducted online (e.g. skype and video) or did you include mediations in the physical presence of parties in the study?

Also when referring to complex. What is your definition of complex? do you mean substantially complex or emotionally complex (may be both)?

Thanks so much for sharing more insights

Good points raised all through this discussion.  I'll try not to mess things up.  :)

Picking up on the emotional + legal aspects (Darin), and the hybrid approach (mentioned by several)... my experience working with ODR is that all those things we (mediators) do based on our gut, in face-2-face mediation... all those quick shifts we make to adapt to the situation in front of us are often are more difficult to make smoothly, when online. 

How do we go with our gut, online?  If the moment requires us to focus on the emotional, how can technology facilitate the transition, and aid our discussion of the emotional aspects, of the divorce/relationship?  If the moment requires us to be left-brained, how can the technology help us in that area? 

I think this speaks to the need to be more intentional online (advantage!) and/or create user interfaces that give us the tools/applications/etc that let us switch mode quickly and seamlessly.  This is particularly key to ODR being adopted more by experienced mediators, who by habit (through experience), trust their gut. 

I'm looking forward to more of both, being intentional and superior interfaces. :)  

In viewing Giuseppe Leone's excellent webinar today on using Skype, my reaction seems apropos of this discussion.

Different channels have different characteristics, which may be used either to the advantage or disadvantage of the mediation, depending mostly on the mediator's intention and the ability to educate and influence the parties' behavior. I think we've established that here.

What I'm recognizing is that I have a very subjective response to videoconferencing: it's not like being in the room, face-to-face, but it's got enough of the characteristics of F2F that it seems enough like it to be a poor facsimile for it. It's synchronous, has visual and audio. But it's just not quite the same.

I don't have this reaction to text-based asynchronous channels (e.g, email, online environments). I know those aren't the same. It feels very different from F2F. So I'm very aware, subjectively, of the limitations of those channels.

Videoconferencing is obviously useful when F2F isn't possible (e.g., distance, time, expense).Yet I'll want to be very careful in choosing it over other channels deliberately, because it seems to have these characteristics:

  • Being synchronous, it allows for immediate and ill-considered reactions; just like in F2F; it doesn't allow the opportunity to pause, reflect, consider responses (like asynchronous communication does).
  • With technical limitations like limited camera fields and low frame refresh rates, the vast majority of non-verbal communication can be lost. Yet we need to remind ourselves of that, because at a casual first-blush level it really seems the other person is in the room with us. Those are potential sources of miscommunication among the parties.
  • So when those miscommunications do happen, those technical limitations also limit the effectiveness of the neutral's interventions to deal with them as compared to F2F.

In short, there's still the opportunity for the same kind of miscommunication causing an instantaneous blow-up we can have in a F2F. Yet there are also a lot more possible sources to cause that miscommunication. And when it does, there are more challenges as we try to deal with them. Something I'll keep in mind when choosing channels.

I should sign-up for Giuseppe's roleplay to practice! 

One of my concerns for ODR is the ability of the neutral mediator to intercede and re-frame during the communications. I know some comments on this board have suggested online tools may decrease emotional involvement. This may be true, but less emotion does not always mean more civility.

My experience is that some people are more likely to be rude or behave badly when they are behind a screen than they would in person. There's something about being in person, generally, which prompts people to behave in a manner to garner acceptance that does not always carry through to the internet. All of this is to say that I am concerned a mediator may not be able to mitigate these sorts of situations as effectively or quickly online.

Just like any other mediation session, I believe that whether or not online mediation would be successful for divorces would depend on the parties involved, and their openness to the idea of online mediation. As some of the other comments have indicated, I think online mediation could be very helpful to resolve divorces when the relationship involved is an abusive or hostile one. Online mediation could help provide a safe opportunity for the submissive spouse to participate without being intimidated by the presence of the dominant spouse. If the spouses are equally hostile towards one another, online mediation could help lessen the tension of face-to-face mediation, and hopefully help prevent arguments. Even if the mediation is done via videoconference, I think the physical absence of the two parties in the same room may lesson the tension.
I also think online mediation for divorces could be helpful to speed up the process, and save money. It is possible that many of the spouses who intend to divorce have already been separated for a period of time, and may no longer reside in the same area. Online mediation would obviously be more convenient and less expensive for these parties, mainly by saving time and travel expenses.
I do think there would be some drawbacks, specifically the ability to pick up on nonverbal communication made by the parties. Even with videoconferencing, I can’t help but assume that a lot of body language, facial expressions, and other nonverbal cues would be lost. This is quite concerning, because often nonverbal communication is more telling that verbal communication.
Not being a mediator myself, I’m curious as to whether mediators would find online mediation easier or harder than face-to-face mediations. I feel like the mediator would lose some control, and perhaps some authority, over the session if it were done online. I suppose it would just come down to each mediator’s personal preference.
Overall, I do not think online mediation is either better or worse than face-to-face mediation. I think it probably has its benefits and its drawbacks, which will vary from session to session based on the issues and the parties involved. I think it is just yet another avenue that people can explore in resolving their disputes.
Online mediation for divorces could be extremely efficient. Divorces often involve a lot of issues and emotions. If there were abuse or aggression involved, it would be especially useful. A party might not want to be in the same room as the other person, for fear of their safety. This gives them the ability to finalize any loose ends without being at risk. In response to Ashley's comments: most mediations are confidential, so couples in abusive relationships would not have to worry about their lives being public. The parties might feel better about ODR because they wouldn't have to verbally talk about what happened. That might make them more emotional.

Additionally, stereotyping happens all the time, often without even realizing it. ODR eliminates that possibility of judging someone based on their appearance, which may help with the neutrality.

It is also a very convenient process. It could be done from the comfort of your home, instead of having to go to an unfamiliar place and make the situation even more uncomfortable.

You raised a great point that I think requires a little more digesting. I think that in my mind, I had always thought of ODR as an all or nothing approach to solving a dispute, but after you pointed it out, I understand that maybe some parts of legal cases could be solved using ODR while other parts of the same case may require that it is best solved in person. I think that maybe preliminary discussions and rules could be set using ODR and then an in person meeting would be best to finalize the processes but I also think that the case would have the potential to fare the same way by doing it the other way around. Either way, I can appreciate how successful results could come about of either way.

Darin Thompson said:

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.  

Hi Ben,

As a trained mediator, I am also hesitant to use an ODR approach to divorce cases where emotions and tensions run high, and some of the decision making is based on in person reactions and body language and initial reactions. However, while this is a huge part of the process, I see the value in maybe beginning the divorce proceedings in an online forum to separate both sides of the story before meetings the parties in person arguably to make the process more efficient and less time consuming for one another.

Ben Ziegler said:

Good points raised all through this discussion.  I'll try not to mess things up.  :)

Picking up on the emotional + legal aspects (Darin), and the hybrid approach (mentioned by several)... my experience working with ODR is that all those things we (mediators) do based on our gut, in face-2-face mediation... all those quick shifts we make to adapt to the situation in front of us are often are more difficult to make smoothly, when online. 

How do we go with our gut, online?  If the moment requires us to focus on the emotional, how can technology facilitate the transition, and aid our discussion of the emotional aspects, of the divorce/relationship?  If the moment requires us to be left-brained, how can the technology help us in that area? 

I think this speaks to the need to be more intentional online (advantage!) and/or create user interfaces that give us the tools/applications/etc that let us switch mode quickly and seamlessly.  This is particularly key to ODR being adopted more by experienced mediators, who by habit (through experience), trust their gut. 

I'm looking forward to more of both, being intentional and superior interfaces. :)  

Hi Tara,

I agree with you basically on every point you made. I think that the value lies within the convenience and ability to interact with the mediator and the other party from the comfort of your own home without arguably making a trip across country or even like an hour away. As a trained mediator, I do agree that ODR takes the emotion out of the process which I think is a huge part of any divorce case and should not be overlooked. As I have mentioned in the discussion already, I think a combination of ODR and in person mediation would be beneficial and idea to resolving a case.

Tara Parpart said:

Just like any other mediation session, I believe that whether or not online mediation would be successful for divorces would depend on the parties involved, and their openness to the idea of online mediation. As some of the other comments have indicated, I think online mediation could be very helpful to resolve divorces when the relationship involved is an abusive or hostile one. Online mediation could help provide a safe opportunity for the submissive spouse to participate without being intimidated by the presence of the dominant spouse. If the spouses are equally hostile towards one another, online mediation could help lessen the tension of face-to-face mediation, and hopefully help prevent arguments. Even if the mediation is done via videoconference, I think the physical absence of the two parties in the same room may lesson the tension.
I also think online mediation for divorces could be helpful to speed up the process, and save money. It is possible that many of the spouses who intend to divorce have already been separated for a period of time, and may no longer reside in the same area. Online mediation would obviously be more convenient and less expensive for these parties, mainly by saving time and travel expenses.
I do think there would be some drawbacks, specifically the ability to pick up on nonverbal communication made by the parties. Even with videoconferencing, I can’t help but assume that a lot of body language, facial expressions, and other nonverbal cues would be lost. This is quite concerning, because often nonverbal communication is more telling that verbal communication.
Not being a mediator myself, I’m curious as to whether mediators would find online mediation easier or harder than face-to-face mediations. I feel like the mediator would lose some control, and perhaps some authority, over the session if it were done online. I suppose it would just come down to each mediator’s personal preference.
Overall, I do not think online mediation is either better or worse than face-to-face mediation. I think it probably has its benefits and its drawbacks, which will vary from session to session based on the issues and the parties involved. I think it is just yet another avenue that people can explore in resolving their disputes.

Invitation to the participants!

Based on the proven success of online mediation in divorce cases in the Netherlands and Germany (supported by a successful pilot conducted by the Dutch Legal Aid Board - see reports above) Juripax has recently completed a beta version of the divorce package that is adapted to US divorce standards. We have done so to the best of our ability and knowledge and with the help of a US client, specializing in family law cases in Boston.

 

We appreciate your help to collect feedback allowing us to improve the system. Also it is meant as an introduction to US mediators that are ''open-minded''/interested to explore the possibilities of including online tools and/or online mediation in their current mediation service offerings.

Please note that 80% of the Juripax system is generic but the remaining 20% includes domain- and jurisdictional-related aspects.  Samples of domain-specific aspects are the intake/diagnostic forms, templates and questionnaires. The input and feedback that we hope to collect during the pilot is particularly relevant in relation to the non-generic aspects since we want to make sure that the system satisfies local needs and jurisdictional issues.

 

Incentive for pilot participants

We will be offering pilot participants free usage of the Juripax system for a certain period of time and a free basic course in the (other) dynamics of online mediation.

 

Scope of the pilot and next steps

I can understand that you may want to have a clearer better picture of the scope of the pilot and the time / resources that you may need to allocate before committing yourselves

For that purpose I would like to set up a Skype-group conference to provide more ample information and answer any specific questions that you may have.

Please send your contact details to either May-Britt or Kitty

I've not been thinking of ODR as an all-or-nothing thing. ODR and in-person aren't mutually exclusive for me.

I'm definitely seeing the opportunity for deploying ODR and in-person meetings strategically, first in process design, then situationally in response to the dynamic between the parties.

There's a possible escalation - a better word might be graduation - among channels:

  • Asynchronous text (email, or ODR environment)
  • Synchronous audio (phone)
  • Synchronous visual/audio (Skype, webmeeting, etc.)
  • In-person

So we can design our processes to move among these, starting with the less-expensive technology-mediated channels, shifting to the next, more expensive channel as needs require. The need would be when the channel of communication is no longer productive in moving toward agreement at that time. In complex cases, either with multiple issues or many parties, we may be in different channels on different issues or with different parties. I see using the technology channels before, in-between, and after in-person meetings to supplement and leverage them, not replace them.

We'd move among the channels situationally, too. Earlier this week in a webinar I loved hearing what Bill Warters said: "When there's too much static, change the channel!"

RSS

@ADRHub Tweets

ADRHub is supported and maintained by the Negotiation & Conflict Resolution Program at Creighton University

Members

© 2020   Created by ADRhub.com - Creighton NCR.   Powered by

Badges  |  Report an Issue  |  Terms of Service