ODR, or online dispute resolution, is not a new form of mediation – it has been around since video conferencing software first made it possible. However, the use of ODR was highlighted during the pandemic, and it currently shows no sign of going away.
In its 2023 audit of commercial mediation in the UK, the Centre for Effective Dispute Resolution (CEDR) revealed that out of 17,000 cases in the year to the 30th September 2022, 64% were conducted online. This is down from 89% during the pandemic at its height, but it is still high enough for the report to note that ‘’it would seem the nature of the field has permanently changed’’.
Disputes do not have to be settled in Court in civil litigation. Whether it is in person or online, between individuals or commercial partners, mediation seeks to resolve conflicts before they end up in Court.
The government is on a mission to make mediation the first port of call in all disputes. At the time of writing, there is no legal obligation to do, but if you can be proven not to have considered it as an option, the Court can impose a costs order on you.
The aim is always to avoid a day in Court with all the time, money and energy that that process involves.
What are the advantages of online mediation?
Sharing documentation digitally in civil litigation disputes has a few advantages. Firstly, it means that everything is readily to hand during the session. Screen sharing allows people to be literally on the same page as one another without any individual rustling through reams of paper looking for the relevant page. On top of that, paper free mediation is an environmentally friendly option.
The difficulty in getting mediation underway is the facility of having everyone together in the first place. This can be because of a clash in diaries or an unwillingness to participate. Online mediation is incredibly flexible – all you need to join is an internet connection.
This can also make rescheduling a less contentious issue. If someone cancels an in person session on the day, this can increase the tensions between the parties and lead to more tedious diarising. Online, sick days and diary clashes are less destructive as meetings can be rescheduled more quickly.
Like all online meetings, there are no geographical restraints and no need to book a meeting room. Participants likewise with mobility issues or other health problems can actively participate. There is also the possibility to call from surroundings that are comfortable rather than a neutral but alien space.
Finally, online mediation can be good for the mediator who after all is the individual in charge of the hearing. Using gallery view, the mediator can see everyone’s facial expressions and reactions at once, giving them a better sense of the group dynamic. They can also get a better look at their own manner and all of this can help them to manage the group and guide them to an agreement.
What are the disadvantages?
Online mediation in theory makes it easier for people to hang up if things are not going their way. Related to this is the obverse of an online mediations flexibility – it is far easier to cancel or reschedule a virtual meeting than a physical one.
There is also the situation that if participants have been staring at their laptops all day, their concentration may waver. It can be difficult for a mediator to make sure that people engage when online. Similarly, it can be hard to deal with people talking over each other or interrupting one another.
The last issue is the concern for security. Mediation should always be confidential, but if there is a chance that someone is recording their screen, the participants could feel on edge. That is something that the mediator should address from the outset.
What is the future of online mediation in the UK?
The government has proposed that anyone involved in a low cost dispute (up to £10,000) should automatically be referred to a free mediation session. This would include all small claims disputes including personal injury claims. At the time of writing this, the government is consulting on whether any case type should be excluded from this scheme, but for the moment civil litigation is certainly covered.
What these proposals show is the government’s desire to have as many disputes as possible resolved through mediation. In doing this, then the burden on the Courts will inevitably be reduced. As mediation continues to expand, it is highly likely that its online version will too.
If you are looking for commercial or private mediation, please do get in touch to consult one of our experienced team of lawyers. Give us a call at 01256 320555 or email us at mail@clarkeandson.co.uk
