17 e-Mediation - Mediate.com

Noam Ebner
3.2.2 E-Mediation: Not Always First Choice
Traditional ADR usually assumes a breakdown in communication or other negotiation
difficulties between parties. Coupled with a general interest-based approach, this leads to
a state-of the-art in which mediation – regarded as the best communication or negotiation
fixer-upper – is viewed as the process of first choice. 25 In ODR, however, this is not the
case. In many cases, negotiation difficulties are viewed as being a result of distance, of low
dispute-value, or of parties not knowing how to contact each other. As a result, some ODR
providers focus on using technology as a way of bringing parties into contact (and sometimes,
highly structured contact) without involving a live mediator. In these cases, technology
as the Fourth Party functions without a human Third Party.
However, these service providers recognize that many cases fail to reach conclusion
for other reasons, and that the presence or assistance of an e-mediator can be helpful.
These service providers offer e-mediation, in one form or another, as an add-on process
after the “primary” process of negotiation has failed. For example, eBay/PayPal’s dispute
resolution process includes live mediation for parties who do not reach agreement through
the automated process. SmartSettle also offers third party assistance in different forms,
and Cybersettle offers “telephone facilitation” in the event that parties to a blind-bidding
process to not overlap, but are judged to be sufficiently close to one another that a final
nudge might help them to settle the case.
It may be that a shift emphasizing technology as a communication medium more than
as a dispute resolution tool in its own self may be inherent in the emergence of an online
market of individual private practitioners. A ripple of this phenomenon might be a tipping
of the balance back towards human intervention as default, as opposed to automated
intervention as default and human intervention as a backup.
3.3 E-Mediation: Advantages and Challenges, Suitability and Conditions
Whilst many scholars have provided an overview of the advantages and disadvantages of
e-mediation, it seems in order to shed light on these two lists at this juncture for practical
considerations pertinent to the mediatability of certain disputes arising in diverse contexts.
3.3.1 Advantages of Online Mediation
3.3.1.1 Advantages for Parties
– E-mediation is convenient. Parties choose when to participate, at least when employing
asynchronous communication; travel time and fuss is eliminated in any event.
25 See F.E.A. Sander & L. Rozdeiczer, “Matching Cases and Dispute Resolution Procedures: Detailed Analysis
Leading to a Mediation-Centered Approach”, Harv. Negot. L. Rev. (2006) 11.
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