Online Dispute Resolution and Domestic Violence
September 2020
This announcement is from the Battered Women’s Justice Project (BWJP)
“Online processes can increase access to dispute resolution for some domestic violence survivors. They can be out of reach for others who don’t have access to private space, reliable internet, uncompromised electronic devices, or basic technical know-how. Online dispute resolution can also expand opportunities for abuse. Mediators can’t afford to jump into online processes without considering certain core limitations.
The only thing mediators can see is what is on their screen. During online dispute resolution sessions, the only things visible to mediators are the things that appear on their own computer screens. Typically, mediators can see each party’s head, neck, and shoulders. Unless the parties are using virtual backgrounds, mediators might also see the space behind the parties, which can include very little or very much, depending on how the parties position themselves.
However, mediators cannot see anything that does not appear on their own computer screens. They cannot see, for instance, what is immediately in front of or facing the parties. They can’t see whether someone or something is positioned behind a party’s monitor—facing them directly from across the table or desk. Mediators cannot see what is immediately below the parties—right under the table or on the floor beside the parties. Mediators cannot see what is going on in the periphery—or in the next room—or just upstairs. Mediators cannot see who’s driving past the parties’ window or sitting in their driveway. What the mediators can’t see might be innocuous or it might be menacing.
Mediators also cannot see what the parties see on the parties’ own monitors. Mediators can’t see, for instance, whether a party is looking at a threatening image—or email—or social media post. They can’t see what other apps are running on the parties’ monitors behind the mediation platform.
The only thing mediators can control is the mediation platform. During online dispute resolution sessions, the only things mediators can control are the features of the mediation platform. Depending upon the chosen technology, mediators can establish waiting areas and breakout rooms. They can disable private chats, recording devices, microphones, and video functions. They can open and close sessions.
Mediators cannot, however, control what’s going on outside the mediation platform. In other words, mediators cannot control whether the parties communicate with one another through text messaging, FaceTime, social media, email, or any number of other means. Mediators cannot control whether the parties record sessions or caucuses on their phones, iPads, voice-activated devices, or even on an old-fashioned tape recorder. Mediators can’t control whether parties utilize spyware or tracking devices to monitor, intrude upon, or intimidate the other.
The only things mediators can know is what the parties tell them. Mediators can attempt to mitigate some of these risks by establishing ground rules and asking the parties to affirm that they’re in compliance and that the conditions for mediation have been met. However, mediators have no way of monitoring or enforcing the ground rules unless the violations are visible—or one of the parties admits to or complains about them. While mediators will be able to address issues of tone or civility, for instance, they might not be able to hold parties accountable for blatantly violating rules concerning private communications, recording sessions, having others present, or otherwise undermining the process.”
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