Mediating Disputes with Digital Media

Abstract

In the present-day globalisation of trade and commerce, alternative dispute resolution (ADR) – in the forms of arbitration, conciliation and mediation – has been increasingly seen as an efficient, economical and effective alternative to litigation for settling commercial and other disputes. The advent of computer technologies, and of Internet in particular, has promoted procedures to resolve disputes totally, or partly, online. This new phenomenon is known under the acronym of ‘ODR’ (online dispute resolution). In particular, ODR instruments have proved to respond positively to the needs of medium-small disputes, such as those in B2B (business to business) and B2C (business to consumer) transactions over the Internet. Besides being the easiest and most innovative way of resolving problems deriving from transactions generated on the World Wide Web, ODR is also becoming popular in the resolution of off-line disputes. The reason is that the online dispute resolution service is simple and easy to carry out as it allows users to cancel time and space barriers, offering them the possibility to communicate easily.

In the context of this situation, this chapter analyses two mediation procedures taking place entirely online in order to understand how communication evolves with the aid of digital media and how it differs from the traditional mediating interaction where participants are all physically present in the same place. In particular, the negotiation techniques employed by the mediators are investigated so as to identify any possible influence or conditioning on the part of the new environment and technology made use of. The various phases of a typical procedure are analysed so as to highlight the potentialities of this new tool.

Appendix

1.1 Roadbuilder vs. Transportation Department (Online Mediation 1)

The Texas Department of Transportation decided to construct a new road over a rough, mountainous area in West Texas. The work was to cover two separate stretches of roadway, the North Slope and the South Slope, located some 150 miles apart, and was to be performed under two separate $25 million fixed-price contracts. A number of highway construction firms participated in the bidding process, among them Roadbuilder, Inc. of Newark, New Jersey, which was awarded both contracts because of its lowest combined bid.

Under each of the two contracts, Roadbuilder was required to perform all excavation and grading work, which included retaining structures and reinforced concrete walls to stabilise the ground above and below the roadway. Roadbuilder also was required to instal the necessary pipes and drainways to assure adequate rainfall drainage.

Roadbuilder was delayed in commencing the work and ran into delays and additional expenses due to encountering unexpected rock outcrops and inclement weather. In February 1997, Roadbuilder notified the department of its additional expenses incurred in the work and refused to proceed further until these expenses were reimbursed. In early March 1997, the state notified Roadbuilder that it was terminating the contract because of Roadbuilder’s failure to perform.

1.2 Rhonda McDonald vs. Easy Living Apartments (Online Mediation 2)

Rhonda McDonald is a third year law student. She works all day and takes night classes. She was looking for a place to live and looked at Easy Living Apartments as a possible solution. She spoke with Mr. Benson, the unit manager, because safety was her main concern since this building is located in a high-crime and high-risk area. She was assured that the building had 24-h security guards and deadbolt locks on all the doors and only after that assurance did she move in. She had made repeated attempts to follow up on the locks and security guards, but at all times, her inquiries were dismissed.

A few weeks ago, on her way from her car to the apartment, she was grabbed by a man and threatened to keep quiet. She was barely able to escape and make it into her apartment and the neighbours called the police. Easy Living Apartments refuse to be held responsible for what happened and believe nothing was said concerning security, when Rhonda McDonald first visited the building.