Online Mediation in the Age of COVID-19 — Benson Mediation, Arbitration, Workplace Investigation
Many of the reasons for using online mediation in 2020 are unique to the time in which we live. While I began offering online mediation more than a year ago, it was, until very recently, a very hard sell versus conventional, in-person mediation. Were it not for the potentially deadly consequences of sitting next to and across the table from the others involved in a mediation, I would probably not be writing this article.
“As the coronavirus made its rapid and implacable advance across the United States, forcing sweeping closures of schools and work places [and courthouses] and bringing about the disappearance of any type of collective, real-world activity, it became obvious that a new era had begun.” [1] Many of the assumptions pertaining to in-person mediations have never really been tested before our new era began. And replacing face to face human interaction with virtual face to face contact represents a sea change for our justice system. With the passage of time and the accumulation of experience, there will be a sorting out and we will, I think, be left with a revitalized way of mediating disputes. Now seems an ideal time to thoughtfully test our assumptions with the intention of keeping the ones that work and discarding the ones that do not.
Online Mediation actually predates, by years, the novel coronavirus. It was originally thought of as a way of bringing the justice system to citizens who could not get to the place where the rule of law was resident. Online mediation relies on the fact that cell phones are ubiquitous in the world, even for people who struggle to meet the most basic of human needs. With a cell phone and then with smart phones, human rights groups helped develop technology that, for the first time, brought the justice system to the people.
Another incubator for online dispute resolution has been e-commerce. Very early in the development of online companies like eBay and Amazon, they were forced to respond to a volume of disputes with their customers and business partners that would have overwhelmed a conventional customer service operation. As a result, these companies looked to artificial intelligence and other technologies to develop algorithms that could resolve disputes in ways that took into account vast amounts of experience expressed as data, and settled disputes in ways that seemed to human customers fair and reasonable.
In the early 2000’s, Skype entered the online meeting market, followed in short order by Google Hangouts, FaceTime, WhatsApp and others. Believe it or not, Zoom has been around since 2013 and went public only in April, 2019. The corona-virus hit in January, 2020; Zoom went from ten million daily users in December, 2019, to two hundred million daily users in March, 2020.
