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.

 

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Replies to This Discussion

RE: Complete record and ODR to reduce emotional barriers

 

I like the point about having the complete record available as you move towards identifying areas of agreement and drafting the final agreements. I believe these communication can also provide an opportunity to do some coaching to help alleviate the potential misattributions that people make when reading text-based messages. If you, as the mediator, see potential misperceptions happening from a message, you can send it back to the sender prior for clarification prior to it being shared with the other party. This can also start to build a constructive process for these two parties to build on so they can transition from their previous initimate relationship to a more effective co-parenting relationship.

Anita Vestal said:

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. 

In browsing through this whole discussion I've noted that most discussion seemed to revolve around text-based communications, or 'asynchronous text' as Jeff Bean described it. As a teenager, I remember using instant-messaging services a lot amongst my friends and family almost everyday at a time when they were the dominant online social medium (well before most social networks such as MySpace/Facebook).

Even then, as young as we were, these text based services were very effective in resolving our trivial, angst-ridden teenage disputes. We wouldn't know we were 'mediating', as such, and sometimes it would take a few hours of intense, well-considered conversation over the span of a few days to come to a resolution about any given social problem (everything is a drama as a teenager), but it was far more comfortable for us as young people to air our grievances with each other online than it was face-to-face. Being able to carefully consider our responses was key, because we could make sure we conveyed exactly what we were thinking. Hiding behind a screen also completely masked any embarrassment, rage or any other unwanted emotions.

With that said, though, in using such text-based technology, it was often difficult to then gauge the reactions and responses of the person you were talking to. Similarly, you may never even know (without direct acknowledgement) if the other party even recognized the gravity of your last statement or point. I feel, as well, like a more literate, wordy person, or even a person that can type on a keyboard more fluently than the other party will be advantaged in this setting. They may be more equipped to influence the discussion either through persuasive language or simply because they can churn out their thoughts more quickly.

The 'synchronous audio/visual' platforms (Skype, webmeetings) that Jeff Bean suggest seem to overcome these problems, but in doing so essentially restore the mediation process as a face-to-face affair (albeit a less costly, more efficient one). My original observations about being able to carefully consider responses and mask embarrassing emotions then no longer apply.

I hope these personal observations are a helpful contribution to this discussion.

Jeff Bean said:

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!"

Hey there Ben. Your points about the need for more nimble "gut-feeling friendly" interfaces got me thinking about some of the work being done on sentiment analysis. The most commercial one I know of is Tonecheck for email, which processes the text of your email before you send it and flags various elements that might trigger a defensive reaction in readers. I wonder if ODR mediation platforms could build that into the mediator's dashboard, showing the tone of comments from the participants and providing buttons to help the mediator address the issue via reframing or helping the parties rephrase something or maybe set up a caucus session. I know that Juripax does have some indicators in their intake system that will flag situations where the parties are in agreement on a question on intake and where they are at odds, but this is more passive than the on-the-fly bit I imagine you were talking about. 

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. :)  

@ Cheree:

I think you bring up a very valid point about how people may become more rude through ODR because they can hide behind the internet. Cyberbullying has become a huge issue, and this could just be another platform for it to spread. ODR would limit physical attacks, but not verbal or written attacks. Additionally, emotion is often needed in mediations to get to the root of the problem. In my opinion, a mediator must be able to understand why a person is feeling a certain emotion in order to understand how to solve it.

@ Darin: We posted simultaneously a reply, which left you out of my reply yesterday, sorry about that. Like you mentioned: ODR is like mediation in itself not an all-or-nothing process with many facets. We as mediators need to keep that in mind and work with that as best to our abilities.

@ Colleen: I read with interest the remark about ODR providing ‘a false sense of security’ and ‘giving the mediator more difficulty to help a party to prepare and implement a safety plan over the course of the mediation’. I might be missing the point completely when I wonder: when realizing that you are not familiar with the location of the party or parties, the mediator would be empowering the party to search themselves for specific help.

I myself do cross-border family mediation and know what I don’t know and make sure that parties will be able to find certain information and help wherever they are in the world through specialized organizations.

@ Ben: Luckily for us we learn along the way (practice makes perfect? Or as best we can.) Our gut feeling has gotten better over time with face-to-face mediation and will evolve also in ODR situations is my experience.

@ Jeff: the effectiveness of mediation in general is limited by the limitations of the mediator first and foremost and next to this the technical limitations of whatever medium we use. As long as we can be open en congruent we can help our clients to become as such.

Thanks also for the quotation of Bill Warters!

@ Cheree: In case of mediation it might be a plus to see ‘the true colors’ of one or both clients. This way you can help them to change what might have become the regular way of interacting into a more effective way of being heard. You can even use the ODR as a coaching tool like Bryan also mentions.

@ Tara: Indeed, ODR should never be pushed upon clients, it can merely be suggested, the decision is up to them. I do think however that loose of control of even authority in case of ODR is not the case. Since the clients send their messages (in the Juripax system) to the mediator and not each other, the mediator is always in full control.

@ Ashley: I like your idea about ODR might be a way of eliminating stereo typing, although I’m afraid with the use of certain language one will make a certain picture of the clients anyway.

@ Ashley: As long as we use the tools that fit us best and to the best of our abilities in a way that suits the situation you can’t go wrong.

@ Bryan: Your words are so true for me. It’s the way I help my clients to make the next step in various ways.

For those who do not know this yet: the Juripax system is designed in a way that different answers to the same questions are marked and so you see in one glance on what you need to work on. Also you can see the timeline in the answers on a certain subject.

@ Rhys: The younger our clients get the more they will feel at ease with ODR. Recognizing it not as a strange/unfamiliar setting but something they can relate to with more ease.

@ Bill: Personally I don’t know Tonecheck, but I like the idea of it (although I hope my own reading and comprehending of the mails I receive from clients is good enough). I’ll ask/tip May-Britt on Monday about this.

@ Ashley: If it will reassure you: Cyber-bulling is not possible in the Juripax system because all mails go via the mediator. At worst the mediator gets bullied.

Good question Bill.  I think you're onto something with tools like Tonecheck.  It would be awesome to have a set of ODR tools that could gauge our emotional state (maybe based on non-verbal communication cues... hello Jeff Thompson :)), ADR state (eg via words we are using), assess when the conversation is going around in circles, etc.  We rely on our self-awareness to be on top of those things when we mediate.  Why not leverage the technology to assist with that?!  

Bill Warters said:

Hey there Ben. Your points about the need for more nimble "gut-feeling friendly" interfaces got me thinking about some of the work being done on sentiment analysis. The most commercial one I know of is Tonecheck for email, which processes the text of your email before you send it and flags various elements that might trigger a defensive reaction in readers. I wonder if ODR mediation platforms could build that into the mediator's dashboard, showing the tone of comments from the participants and providing buttons to help the mediator address the issue via reframing or helping the parties rephrase something or maybe set up a caucus session. I know that Juripax does have some indicators in their intake system that will flag situations where the parties are in agreement on a question on intake and where they are at odds, but this is more passive than the on-the-fly bit I imagine you were talking about. 

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. :)  

I appreciate all of your comments and concerns about ODR. I've not used Juripax and look forward to trying it out. My experience is with Skype, Go to Meetings and WebEx platforms. I use these for business disputes, family and elder care issues. I'm developing a video conferencing pilot for misdemeanor charges in the court system. What I've noticed is that as a mediator I need to have strong skills before mediating in the fourth dimension. Technology isn't always perfect. Parties microphones and pictures freeze sometimes. Web browsers are sometimes not compatible with some software or parties have outdated software that causes technical issues. Slow internet speeds can cause delays, shadowing, and interruptions. That said the mediator must be competent in both conflict resolution and technology skills so as not to become flustered when something goes wrong. If not, you may lose trust of the parties.

One of the features of all of these platforms is that only one person can speak at a time. If you're a mediator who is uncomfortable with interruptions you might enjoy this aspect of ODR. I find mediating online sharpens my focus on body language and trust issues. Developing trust in this dimension is different, not better or worse. Parties have commented that they feel safer in this dimension because of the physical space. I've not found that parties are necessarily more rude online than in person, but I have found that they sometimes get distracted since they can be online in a mediation and also checking their email at the same time by opening another window. I find I use a whiteboard and document sharing frequently which adds to spontaneity. I'm hyper aware of potential power imbalances that can exist in this medium due to the different comfort levels parties may have with technology.
Kitty Duell said:

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'm actually more skeptic as to the actual utility of this process.  This summer, I was part of several ex parte divorces and, in the cases where the abusive spouse is present, TROs are still available.  However, I do agree with you that I do not think that such an option would have a substantial effect on the divorce rate given how many jurisdictions have gone to no fault divorce.  Already, the threshold is super low: you just need one party who is willing to testify that there are irreconcilable differences.  Additionally, I don't think people take the decision to divorce lightly.  While we might simply the process of getting a divorce, the severe emotional cost and resulting outcomes stemming from that decision are already the most substantial break on the process.

Bryan Hanson said:

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.

 

I see Colleen mentioned that our Distance Family Mediation Project would be releasing an updated version of its publication, "Mediating from a Distance: Suggested Practice Guidelines for Family Mediators".  We released it just a few days ago.  You can download it from the Mediate BC Society website's news release at http://mediatebc.com/About-Us/News/Just-Released!-Second-Edition-of....  This second edition highlights our project team's experiences using web conferencing to conduct family mediations.

Colleen Getz said:

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!

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