January 12, 2015

Online Dispute Resolution and Divorce: A Commentary

Susan L. Brooks

My legal practice and my research and teaching in the field of law have been heavily influenced by my social work training and experience. An important frame for this work is Therapeutic Jurisprudence (TJ), a critical legal perspective that focuses on law as a therapeutic agent.[i] A key question in TJ is the effect of a law or practice on the well-being of the people who are its subjects. A therapeutic perspective takes account of people’s wide-ranging contexts and views all individuals as a part of larger systems, so they are always existing in relationship with others rather than acting as atomistic individuals. Along with a colleague, I have coined this approach “Relationship Centered Lawyering.”[ii]

From a TJ perspective, mediation can help parties in family law matters improve their relational skills and reach a place of mutual understanding, in addition to creating new possibilities. For instance, I have mediated a number of cases with formerly antagonistic parents who, as a result of the face-to-face process, were able to begin to develop a friendly relationship focused on their shared co-parenting role. Many in the field might think this is reminiscent of transformative mediation, which is only one of several legitimate mediation approaches.

ODR can have many therapeutic benefits. As Becca Brennan notes in the companion article, in a range of situations ODR may be the only way that the parties can participate in mediation. The reasons may be related to geography or safety, especially in the case of individuals with a history of domestic violence, or some other factor based on the parties’ needs and interests. If the choice is between ODR and a traditional adversarial legal process, ODR is well worth a try.

My concerns about ODR mainly fall into the category of missed opportunities in situations in which people have a genuine choice between mediating face-to-face and online. In my experience, parties who are willing to come together in the same room to mediate can forge new, more constructive and positive relationships through the mediation process. An essential ingredient in creating a potentially transformative process is having the parties together in the same room, where they can witness and experience each others’ nonverbal as well as verbal communication and have the possibility of tapping into their shared connections. For instance, if they can experience each other’s emotions in the room together, this might help them connect with whatever brought them together in the first place and could engender a sense of empathy between them.

Having the parties together in the same room often means that they become emotional in ways that may be awkward, extremely tense, or conflict-ridden. A skilled mediator can create a safe space, help the parties work through difficult moments, and maximize the positive potential of the mediation process.

My concerns about ODR are similar to my thoughts about mediators who are uncomfortable with a high level of emotion and messiness and therefore tend to want to caucus with parties individually rather than work with them together. ODR seems like caucusing, in that the parties are separated by distance and the mediator is dealing with them one at a time. When used excessively, caucusing eventually becomes something other than mediation and bears similarities to traditional adversarial processes. Similarly, I worry that mediators might encourage parties to opt for ODR based more on their own comfort level than on what is more therapeutic for the parties. Even if the parties think, perhaps accurately, that being in different rooms or having time and space between their communications would be more comfortable or less emotional for them, the lack of face-to-face contact may nevertheless detract from their opportunity to have the mediation process work in a transformative way. 

Given these considerations, all mediators need to ensure that they provide parties with as much information as possible about the potential advantages and disadvantages of ODR and all available options, including face-to-face meetings. In making important process choices such as this one, mediators must assist parties in making well-informed decisions that maximize mediation’s therapeutic value.

Susan L. Brooks is the Associate Dean for Experiential Learning and a Professor of Law at the Drexel University Thomas R. Kline School of Law. She obtained a master’s degree in social work before receiving her law degree. As a lawyer, she has focused most of her family law practice on child welfare. She was also a certified family mediator in the state of Tennessee. She can be reached at susan.brooks@drexel.edu

[i] International Network on Therapeutic Jurisprudence, www.therapeuticjurisprudence.org (last visited Dec. 11, 2014).

[ii]  RELATIONSHIP-CENTERED LAWYERING: SOCIAL SCIENCE THEORY FOR TRANSFORMING LEGAL PRACTICE 6-7 (SUSAN L. BROOKS & ROBERT G. MADDEN, EDS. 2010).

Susan L. Brooks