January 12, 2015

Online Dispute Resolution and Divorce

Becca Brennan

While any lawsuit is inherently unpleasant, a divorce is uniquely stressful. The dispute is intensely personal and the break that ruptured the marriage is often messy, inflicting long-lasting injury. To make matters worse, the important practical issues, such as property division, spousal support, child custody, and child support have the potential to prolong contention long after settlement. 

Because divorce proceedings so often involve highly personal matters and strong emotions, mediation has become an increasingly popular alternative to litigation. Encouraging communication and promoting settlement, ADR has proven particularly beneficial when children are involved. (When custody or visitation of children is at issue, many, if not most, states currently mandate mediation before parties can even enter a courtroom.) However, factors such as geography (when spouses live far apart) or emotional distance (when they do not want to be in the same room) can render traditional mediation difficult or impossible. The Internet, of course, has brought us communication without face-to-face contact, and the burgeoning field of online dispute resolution (ODR) now utilizes continuously advancing technology to make mediation possible for couples who once could not have used it.

Online dispute resolution has proven to be an efficient and cost-effective solution for the high-volume, low-value disputes that arise between online buyers and sellers. eBay has used online dispute resolution since 2000. ODR is also the default option in the Uniform Dispute Resolution Policy established by the Internet Corporation for Assigned Names and Numbers.

While ODR seems a natural option for disputes between parties whose entire relationship has been online, whether it is widely appropriate for divorce mediation is a topic of considerable disagreement. Some mediators, especially those with a background in psychology or social work, generally believe that avoiding traditional (i.e. face-to-face) mediation may well undercut the therapeutic qualities that make mediation so beneficial to divorce settlements in the first place (see the companion article by Susan L. Brooks).

ODR can make use of a variety of available resources depending on the needs of the participants. For instance, videoconferencing through services such as GoToMeeting allows participants to share their computer screens and view a document simultaneously. Mediators can use whiteboard applications to take notes that all participants can see and use to keep track of the conversation. A cloud-based document storage service such as Dropbox, which all participants can easily access, can serve as a holding area for all relevant documents. These resources are often used in conjunction with e-mails and teleconferences between sessions to ensure each meeting is as productive as possible. Some ODR providers even offer their own customized tools or dashboards, where the entire process – from the initial consultation to the signing of court documents – can take place on one platform. Hybrids of online and in-person sessions are also possible, depending on the circumstances.

Speed

Depending on the issues and complexities of their particular situation, divorcing couples who choose to mediate can settle their disputes in roughly half the time required for those who choose an adversarial route.[i]

Online mediation offers an even faster route to settlement by eliminating face-to-face meetings, thus saving travel time and the need to coordinate the schedules of three or more people. A speedier settlement not only means that both parties can get on with their lives more quickly; it reduces overall legal costs.

One of the first professionals to offer online-based mediation in the divorce context was New York City-based attorney Petra Maxwell. Through her website, themediationline.com, Maxwell initially starting proposing online services as a means to overcome geographical distance between divorcing parties. However, she now finds that new clients often approach her because they are seeking a more affordable option. In a telephone interview, Maxwell said that she is able to charge a lower hourly rate for online mediations by eliminating the overhead expenses necessary when meeting in person. Even when a party is represented by an attorney charging regular rates, if negotiations are by e-mail rather than in-person, attorney hours (and thus, overall fees) are reduced, she said, allowing divorcing spouses to focus on the substantive issues rather than a ticking clock.

Distance

Online mediation is a convenient choice for divorcing couples who no longer live in the same area. And even when the parties could meet in person, limiting their face-to-face communication may facilitate a more businesslike relationship during sessions, help keep emotions at bay, and perhaps, by creating a model for constructive conversation, help future communication and co-parenting. Being in separate spaces can also improve negotiations: a disputant who can negotiate from a comfortable, familiar setting may feel calmer, more relaxed, less pressured, and less threatened than he or she would sitting across from a glaring spouse in a formal office or conference room.

In some cases, such as those involving domestic violence or any in which one party feels intimidated, mediating with the parties in different places may be the only way divorce will be sought. Some separated people simply cannot face their spouse. Maxwell describes one particularly complex divorce involving a couple whose marriage fell apart after a family tragedy. Both spouses were so distraught that they couldn’t even be in the same room together, let alone negotiate property division for a separation agreement. One spouse moved to another state, yet they remained legally married for years. When a legal separation ultimately became necessary, one spouse approached Maxwell, hoping online mediation would be easier, both physically and emotionally. A videoconference was initially scheduled, but the parties ultimately decided they couldn’t even face each other via a computer screen, and they eventually opted for what Maxwell describes as “shuttle” negotiations – back and forth e-mails proposing and responding to terms. Several years later, a separation agreement has finally been executed, and the actual divorce process will be under way soon.

Asynchronous Communication

When conducted primarily through e-mail or similar online communication platforms, the negotiations in a mediated divorce are asynchronous. The time between proposals and responses can both help and hinder: When a conversation is especially tense or emotional, the ability to step away and reflect on a statement or situation before responding may be invaluable. For this same reason, many mediators break into caucus during in-person sessions. While one party catches his or her breath, the mediator meets privately with the other party to go over what has been discussed and to let one spouse propose a solution to the mediator before the other spouse hears it. Just as in those in-person situations, having a time gap between an e-mail statement and an e-mail response allows a mediator to review the statement with the recipient privately before he or she responds.

Asynchronous communication can also help mediators perform their job more effectively. Parsing out each party’s point of view in the drawn-out back and forth of online communication can help the mediator focus on the broader picture, not just moment-to-moment interactions. Furthermore, mediators can use the time to craft thoughtful questions and creative suggestions more effectively. On the other hand, asynchronous communication can also be detrimental because it can give parties time to disengage, overthink, and change their minds. 

Text-Based Communication

Perhaps the most debated attribute of ODR is the ability to rely on text-based communication. To be able to express one’s viewpoint without having to worry about interruptions can reduce anxiety and increase confidence. By eliminating body language and speech through text-based communication, any disruptive or superfluous communication cues are eliminated. Even when relations are relatively amicable, most divorcing couples have well-established patterns of communication and are adept at reading (and using to their advantage) each other’s nonverbal cues. Furthermore, unconscious body language can easily be misinterpreted, even by a spouse skilled at interpreting such cues, if exhibited in an unfamiliar context. Crossed arms, for example, can make someone look angry or closed off, when in fact he or she is nervous or uncomfortable. When someone perceives behavior as negative, whether or not that is what the other person intended, the perceiver tends to react, increasing the likelihood of retaliatory behavior and perhaps even an impasse.

Critics of ODR argue that the medium is too limited and that face-to-face communication is necessary for a cathartic experience in mediation. The absence of facial expressions, gestures, and other body language, these critics say, can create communication voids that parties may fill with their own doubts and fears, perhaps even coming to distrust the mediator and lapse into the high-pitched roles that are so common in very difficult divorces. Also, as with distance and asynchronous communication, relying on text-based communication can keep parties from filtering their communications. Studies have shown that remarks containing swearing, insults, name-calling, and hostile comments are eight times more frequent in online communication than in face-to-face interactions.[ii] 

On the other hand, most people have adapted to online communication, and many of our day-to-day interactions are conducted through e-mail and online exchanges. Many people have become attuned to what is being conveyed in online communication, and some may even be more comfortable communicating through e-mail or videoconference than they would through face-to-face conversations.

Conclusion

“When two people decide to get a divorce, it isn’t a sign that they ‘don’t understand’ one another, but a sign that they have, at last, begun to.”[iii] This statement by American humorist Helen Rowland may best sum up why mediation – and the communication it encourages – are particularly advantageous in negotiating the terms of a divorce settlement.

ODR, in particular online mediation, offers the benefits of traditional mediation with the convenience, speed, and physical distance of online communication. The offer of expedient negotiations can ameliorate the anger, guilt, and anxiety spouses often experience during the divorce process. Being able to conduct mediation sessions from a distance is not only convenient and cost-efficient but can help assuage the fear, anger, and grief that could potentially hinder negotiations and eventual settlement. Finally, the asynchronous and text-based communication afforded by online mediation can allow for more businesslike, less emotional conversation between divorcing parties.

Divorce is always going to be a difficult process and a difficult time for most people, but the alternative and emerging method of ODR may ease the inevitable pain and stress, create a more satisfying process, and result in a happier ever after. 

Becca Brennan is an attorney at Bristol-Myers Squibb. She can be reached at beccabrennan.tm@gmail.com. This article is excerpted from a note published in Volume 13.1 of the Cardozo Journal of Conflict Resolution.

[i] See, e.g., Robert E. Emery, et al., Child Custody Mediation and Litigation Contact, and Co-Parenting 12 Years After Initial Dispute Resolution, 69 J. Consulting and Clinical Psychol. 323-332 (2001).

[ii] Leigh Thompson & Janice Nadler, Negotiating via Information Technology: Theory and Application, 58 J. Soc. Issues 109, 119 (2002) (citing Vitaly J. Dubrovsky, et al., The Equalization Phenomenon: Status Effects in Computer-Mediated and Face-to-Face Decision-Making Groups, 6 Human-Computer Interaction 119, 132 (1991)).

[iii] Helen Rowland, a guide to men: being encore reflections of a bachelor girl (1922).

Becca Brennan