ODR has consistently been in the news since the early 90s. It has popped up again this week as the ICC reported that the videos of its significant ODR conference in 2017 are now available from its online library.
ODR has also been appearing consistently in undergraduate and postgraduate programs of Australian law schools.
At UNSW I have been able to take the opportunity to teach in an ‘Active Learning Space’ where students work in small groups at pods around the walls complete with individual large screens. Individual computers connect to each screen promoting group activity and enhancing my supervision opportunities. This is a great space in which to combine experiential learning with developing creative ways to teach and experiment with the new developments in the field.
As I have built my skills in using this space I have been congratulating myself on having found a way to keep students away from their mobile phones and other distracting devices and deeply engaged in transparent, collaborative, group learning.
For all my self-congratulations, in the end I have discovered it is the students who have given me the lesson. Let me explain.
For some years, part of the experiential program has included an introduction to ODR. Teaching ODR is not new and there are numerous online reports of how these curricula have developed. There are some great Australian examples to be proud of.
I embraced this field several years ago, with my undergraduate class, with a simple conflict resolution exercise. It primarily depended on email with students working from different locations. It was challenging and hard to manage.
I explored an international exercise with a former student now running a dispute resolution program in an American university. This was a disaster – whilst my students obtained marks as part of their class assessment, his students took the class as an ‘extracurricular’ exercise and, understandably, lacked commitment and persistence when international communications became challenging. I have abandoned this for the present but I know it is in the future to be revisited.
Over time, the exercise has gradually added more platforms and devices where we explored synchronous experiences such as Skype and asynchronous experiences such as email combined with Skype, private channel YouTube recordings and email. It was challenging and still required intervention offline when things went off-track.
Recently, through the generosity of Modron, I was given the opportunity to use my classroom as a Beta site for exploring Modron’s close to seamless online program for dispute resolution. Students were able to appoint a mediator, negotiate fees, execute a mediation agreement, conduct a full mediation session complete with confidential caucuses, execute a settlement agreement and pay the mediator using a single piece of software.
It wasn’t perfect but it was a considerable enhancement from what had been serving as an ODR experience previously. Students did get bumped off the system from time to time through technical teething difficulties but we were well aware we were engaged in a beta test and recognised that what we were doing was helping to iron out some of the software issues.
The exercise took several hours over the elapsed time of a day and I saw it as a useful experience which gave students a glimpse into the future world which would be of their making. I thought the students would have endorsed it wholeheartedly.
But there was a significant lesson waiting for me as I debriefed the exercise.
This photo shows the early comments from the 6 mediation groups as they began to record their comments for our debrief session. By the time the debrief was completed we had filled 3 whiteboards!
Students characterised ODR as something that had a value in particular circumstances.
However, as the debrief continued, they shared much more significant insights namely:
- ODR and technology have a place in the greater field of ADR as one tool and NOT as a complete replacement for other modes of resolution. ADR is an ‘and, and, and environment – not ‘either or’
- ADR offers an important opportunity for meaningful in-person encounters that facilitate exploring and rebuilding a shared narrative. Some things can’t be achieved effectively online and it would ‘destroy the innate value of mediation if important in-person experiences were replaced by the drive for increased efficiency.’ Sometimes it is more important to be effective rather than efficient.
- Except for unusual circumstances where parties require to be separated, in-person processes, with clients present, are ALWAYS preferable.
I owe the millennials an apology for my assumption they prefer life on devices, disconnected from human exchanges.
What a great lesson. The future is in good hands!