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Reply To: Bringing NZ mediation online during the COVID-19 shutdown

International Mediation Institute Forums General New Zealand Bringing NZ mediation online during the COVID-19 shutdown Reply To: Bringing NZ mediation online during the COVID-19 shutdown

Ian MacduffIan Macduff

Hi all – Ian Macduff here in Auckland, NZ. This post was initially prepared for an forum a week or so ago, on online arbitration and mediation. I’d been asked to post on “best practice in online mediation”, hence my opening paragraph:

My objective in this opening post is simply to raise some observations about the growing practice of mediation online, to comment on the different contexts in which we might do this and – rather than offer prescriptions for “best practice” – to suggest guiding principles. My reason for avoiding “best practice” prescriptions is relatively simple: mediation might well be seen these days to have familiar features across countries and jurisdictions, but two of the founding ideals of the emergent practice some 40 years ago were those of flexibility in design and autonomy of the parties. I also recall, perhaps 15 years ago, working alongside a very well-known group of trainers who opened their negotiation workshop by saying to the assembled participants (in a country and culture very different from that of the trainers) that their plan was to teach “global best practice”. The trainers never quite recovered from the perception amongst the participants that this was a form of cultural imposition and an implicit assumption that the trainees were “raw material” without a negotiation culture.

So, with that caveat in mind . . .

By way of preliminary observation about the trajectory of this field of online mediation, I note that I wrote what now looks like a very naive article on an early experience in online mediation, at a time when the practice didn’t have a name or an acronym and – for those of you old enough to remember – connection to this new phenomenon, the Internet, was via modem. The mediation took place over some days, in 1992, all by email, all painfully slow, and never in a position to bring the parties together in one [virtual] place for a conversation. The parties were, respectively, on the east and west coast of the US, and in western Canada – and I was in New Zealand. The article was published in 1994. This was before the Internet was opened to commerce; so much of the online communication was – as in this case – in online chatrooms. Details are unimportant here – you can, if you like, read more here: or

Context matters: I think we can see five settings in which online mediation has developed, as a response to different needs and imperatives –

  • first, early responses to online “flaming” in chatrooms (as reported in my article and, of course, many other places): as Ethan Katsh has observed several times, we found very quickly that the Internet was not always a peaceful place and, while there might have been – and may still be – hopes that we can foster enhanced connection and communication, there’s also the need to find tools to deal with distance, anonymity, animosity and sheer bloody-mindedness . . . and those tools needed to be invented to match the setting. As another pioneer in ADR – Prof Frank Sander – commented, the virtue of mediation (and other ADR tools) was in being able to go where the disputants were – though I doubt that he anticipated that this would involve digital tools. So, the first setting for the development of online mediation practice and principles is simply (?) that of the burgeoning reality of online communication, in which things can and do go wrong.
  • second, with the arrival of commerce on the Internet from around 1995 (which some of the founders of the Internet now regret) there was naturally a need to develop tools to respond to inevitable disputes over delivery, payment, quality; and a need to respond the the incapacity, at times, of national courts to deal with issues of jurisdiction, applicable law and enforcement.
  • third, the emerging tools of online communication and the gradual – if uneven spread of necessary infrastructure – offered the promise of engagement in legal and resolution processes for those whose participation in regular processes of dispute resolution and settlement were challenged by physical distance or remoteness – which might also be accompanied by constrained access to resources. Think of the distances that parties to litigation, arbitration, or mediation might need to cover in, say, Canada, Australia, or across scattered islands of Pacific nations.
  • fourth, parties are also all too often separated by risk and conflict and by either an inability or unwillingness to meet in the same space; they might also be constrained by perceptions amongst their own people that they cannot be seen to be engaging directly with “the enemy”. One of the huge promises of online resources and communication is in the capacity these tools might offer to allow parties communication – and mediation – at a distance.
  • fifth – and only recently added to my little list! – parties might be separated by risks of viral contagion and/or government edicts that they not venture forth and, above all, not engage face to face with others. More than ever, mediators – and arbitrators – are now having to make a virtue of necessity and find ways of continuing their work online. In New Zealand, this might become even more imperative as the Courts begin to close for business and parties – in whatever field of disputes – might turn to non-judicial forms of settlement. (Parenthetically, I have to note that this pandemic has caught our judicial system by surprise and we see the cost of not having made progress on digital strategies for the courts).

So, my first point on developing best practice is that context matters and that the design of your mediation process will be bound to take into consideration the circumstances of the parties, not just in terms of what the substance of the dispute is but also what feeds and shapes their perceptions of the dispute (and, indeed, of mediation: as many of you will know, how parties in different cultures and jurisdictions perceive “mediation” will vary considerably). On the design point, see amongst others Orna Rabinovich-Einy & Ethan Katsh, “Technology and the Future of Dispute Systems Design”

Levels of digital engagement: how are you using digital technologies? Here again, ‘best practice’ will be shaped by what you – the mediator and the parties – have available; what your level of comfort and familiarity might be, and what level of simplicity or sophistication might be appropriate. Thus:

  • Supplementary: the use of digital resources as ancillary to regular practice – for file storage, note taking, communication etc. Without thinking of themselves as digital innovators, many practitioners will of course be using phones, tablets, online document storage, calendar management and so on.
  • Imitative: the use of digital resources to migrate normal practice to online – nothing much changes in the way you practise but you might, for example, use video tools such as Skype, Zoom, WhatsApp, and the built-in facilities of your device or laptop. At its simplest, this is an exercise in carrying on your work in the same way but just at a distance; but the risks of imitative use of digital resources are that little attention is given to what might need to change by way of engagement and communication, nor to the kinds of questions raised in earlier conversations about security, document sharing, privacy and so on. Moving online in mediation practice typically ought to involve more careful attention than – say – a Skype chat with the family, during which there will be cross-talk, passing pets, confusion as to where the camera on the iPad might be, and poor images as the family is backlit against an open window.
  • Transformative: the stage we’re at now is to work out the ways in which digital resources not only supplement but also potentially radically transform the ways in which we work – which is where the design issue previously referred to comes in. I won’t dwell on that at this stage other than to note that the modern history of negotiation and mediation practice has been accompanied, from a very early stage, by the recognition that this is a chance to “fit the forum to the fuss (another Frank Sander expression).

Principles: I’ll simply note here, perhaps for further discussion, some of the principles that might shape ‘best practice’:

  • inclusion: ensuring digital inclusion in order to ensure communication inclusion (noting that a current concern, quite apart from dispute resolution, is the level of digital exclusion in any jurisdiction, not just as a matter of infrastructure and bandwidth but also language, digital ‘literacy’ – all the more so as government services move online increasing the need for access, often for those populations less likely to have access)
  • confidence – in one’s capacity to use the technology as well as in the mediator and the integrity of all parties
  • confidentiality – of communications, shared documents, files (including video) that might be copied and stored (this was raised earlier in Paul’s discussion);
    bear in mind possibility that parties might not have their own computers/devices and may need to use either friends’ or public facilities
  • consider, too, that in some cultural settings, parties might expect and need to have the presence of a wider circle of support/family – not necessarily as direct participants but as support
  • transparency – digital access adds a layer of concern, beyond the normal need to provide transparency about how the process of mediation works, especially if parties feel less in control of the technical elements of the process
  • trust – what additional “trust mechanisms” need to be in place, over and above those conventionally employed to ensure confidence in the process and people? Absent some of the usual trust cues, what additional measures need to be implemented?

Ensuring technology set-up

  • technical compatibility (less likely to be an issue as devices mostly communicate readily across platforms, but important for tasks such as document editing and mark-up; hence choose and stick to one document creation platform such as Word or Pages)
    keeping technology as simple as possible for the participants; as fully-featured as necessary for the task
  • set up shared platforms (eg if document sharing)
  • identify and become familiar with software platforms (Skype, Zoom, WhatsApp . . .); if necessary, offer pre-mediation assistance and practice with whatever platform is going to be used

IT requirements?
– encryption
– secure document exchange
– single document, multi-author facilities
– file repository
– video

Additional options and issues
– synchronous or asynchronous communication;
– time zone management
– managing “speaking order” . . . taking your mediator skills online!
– ensuring parties not currently in any conversation are offline and the communication is confidential

A bigger question – how might this change, or contribute to changing, modes of civic and public discourse?
while ICT does foster narrowcasting, the translation of citizens into consumers whose priority is choice, autonomy and a new technoculture, that same technology can be seen and used in terms of its capacity to foster engagement, citizenship, civic dialogues:

“In short, the interactive mediaspace offers a new way of understanding civilisation itself, and a new set of good reasons for engaging with civic reality more fully in the face of what are often perceived (or taught) to be the many risks and compromises associated with cooperative behaviour.” [Douglas Rushkoff, “Open Source Democracy: How Online Communication is Changing Offline Politics”,, p. 16.]