I Miss ODR
I Miss ODR
A long time advocate of online mediation reflects tongue-in-cheek on how it was viewed before the COVID-19 pandemic, considers how and why mediators have had to become acquainted with using technology in their work and expresses hope that the field will hold onto the benefits of online mediation as Canada longs for a return to “how things used to be”.
I miss the old online dispute resolution (ODR); that is, the pre-pandemic view of mediating online.
I miss online mediation being viewed as some futuristic process that could be shrugged off for now. The ODR that was not relevant to many seasoned practitioners’ practices. The platform for addressing conflict that a mediator could make it to retirement without having to take too seriously.
I miss online mediation being criticized in theory. An abstract thought that could be looked down upon like Owen Fiss did settlement all those years ago without factoring in practical considerations or reality.
I miss the knee jerk reactions. The same concerns being repeated over and over again since the 1990s. Not everyone has a computer. Virtual mediation is too cold / the process must take place in-person. You lose the momentum when you try to mediate online, too much of what makes the process magical is lost. We must continue to send faxes, listen to CDs and use cash because there could not possibly be a better way.
I miss ODR being taught as a section of a dispute resolution course. Today, it exists throughout the entire program. The novelty is lost. It is a mystery no more.
What I like to refer to as “the great acceleration” has occurred over the past year or so. By this, I mean that since the turn of the century we all knew that ODR was coming. It was only a matter of time. As younger generations did more and more communicating through devices and less and less in-person, it was clear. The problem was that ODR is disruptive. It would not be the same and could not accommodate many tried and true techniques. New skills would be needed. New ways of doing things developed. So, mediation – as a field – waited. It was only a matter of time before the machines took over, but time was on our side.
Before COVID-19, many viewed ODR as a second-rate system. Good for low value conflict and convenience. An advantage when it is not worth taking a day off work to fight a parking ticket but not appropriate for the five figure conflicts that provide mediators with their bread and butter. Then, to eat during the pandemic, many mediators had to move online. They had to take the plunge and get uncomfortable. They had to adapt.
Today, as we look forward, I see many longing for the return of the olden days. They cannot wait to book a mediation room and get an opportunity to once again discuss the location of the washrooms with their clients. They may consider the role of masks – along with food and drink – in the mediations of the future, yet cling to the hope that a year from now they will be mediating as they did just a few short years ago.
While I have been a longtime supporter of online mediation, you will never find me saying that it is appropriate for every single conflict. Only the vast majority.
To that end, I implore my fellow practitioners from coast-to-coast not to view the progress made in online mediation during the pandemic as the ninth season of the television series Dallas – the one that was all a dream. Instead, I encourage you to reflect on the evolution of our field. The advantages that have come with scheduling convenience and improving access to justice. The power of the mute feature and ease in which mediators can establish and move people around in breakout rooms online. Let’s appreciate the advantages that come without delays of getting in hundreds of steps while facilitating caucus. How allowing our clients to participate from the comfort of their homes and familiar surroundings adds comfort to the mediation process and enhances the procedural experience.
Instead of looking to the past and rushing to return to it, let us instead consider the benefits we have experienced with online mediation becoming more common and pave a future that includes them. It was just a few short years ago that “BBC Dad” Professor Robert Kelly went viral as his child crashed his interview on live television. That type of intrusion is normal in this day and age. Just as is the case in-person, our processes do not need to play out perfectly when they take place online. This adds humanity to ODR, overcoming dated hesitations about it. Normalizing it.
As a field, let’s ensure that we maintain the advantages that have come with getting familiar with online mediation, even when restrictions on gatherings are eased. Even when it becomes possible to mediate in-person again, there is a place for ODR. We owe it to the field not to move backwards.
Marc Bhalla (he/him) [biracial] is a mediator, arbitrator and lecturer who studied online dispute resolution as he earned his Master of Laws in Dispute Resolution from Osgoode Hall Law School. He holds the Chartered Mediator and Qualified Arbitrator designations of the ADR Institute of Canada.