The COVID-19 pandemic that emerged in the United States in 2020 has changed many things. Online dispute resolution (ODR) and online mediation have become widely used. Many mediators – including me – had concerns about how effective ODR would be. From the mediator’s perspective, we miss out on a lot, particularly body language.
From my perspective, online mediation has worked rather well. It is more convenient for the parties not needing to transport to an in-person mediation. In more emotional mediations, the “distance” you get online is more comforting, allowing parties to speak more openly. Now, we have 2 studies from the US Equal Employment Opportunity Commission that demonstrate how successful online mediation has been. The first study was a survey of the mediation parties:
- Ninety-two percent of charging parties (“CPs”) and 98% of employers would use EEOC ODR mediation again.
- Procedural Justice measures show that 86% of CPs and 94% of employers view the ODR procedures used by EEOC mediators as fair.
- The Distributive Justice measure of overall fairness shows that 82% of CPs and 91% of Employers view the overall ODR mediation as fair. The Distributive Justice measure of outcome satisfaction shows that 60% of CPs and 72% of Employers are satisfied with the results of the ODR mediation. This outcome satisfaction rate is much higher than the 2000 in-person mediation (IPM) rate.
- Nearly 70% of the participants prefer ODR to IPM for a future mediation even where IPM is offered by the EEOC. Only 13% preferred IPM in the future.
- While responses to an open-ended question reflect that the COVID-19 pandemic (“pandemic”) influences the preference for ODR, there was extensive data showing that the ODR preference is often related to non-pandemic factors such as flexibility, location convenience, safe space, and efficiency. In particular, Employers and counsel note the importance of this efficiency in open-ended comments.
- Sixty-two percent of Employers stated that the availability of ODR makes it more attractive for them to participate in EEOC mediation.
- Overall, the ODR measures are similar to or higher than the 2000 IPM measures but not quite as high as the EEOC’s internal 2018/2019 survey using the same benchmark measures.
- CPs overwhelming report that the key issue at impasses is money. New ODR measures show that at final impasse the parties are far apart on money. EEOC mediators seldom had an impasse outcome unless the money impasse gap was large suggesting the mediators competently discharged their duties.
- Access to justice is significantly increased by ODR flexibility and location plus Employer willingness to participate in a case resolution via ODR.
- In comparison of measures across the two parties, Employers historically report higher satisfaction across the range of procedural and due process measures including in ODR.
- Where the parties do not settle, 33% report progress was made toward resolution. Thirty-eight percent report no progress with the remaining neither agreeing or disagreeing.
- Overall, the data show that, in general, a CPs best chance for obtaining economic value is at the mediation stage.
- 68% of CPs had first attempted to resolve the dispute directly with their employer but were unsuccessful.
The second EEOC study surveyed the mediators:
- ODR at the EEOC is more flexible than IPM. There is increased use of caucusing, increased sharing of important documents, a significant reduction of the time pressure element found in IPM, scheduling flexibility including the ability to extend the time of a mediation and / or quickly reconvene a mediation to maintain settlement momentum, the added value of physical separation of the parties’ safe space, increased / varied communication lanes, the positive role played by insurance adjusters, and the real-time ability to invite other persons such as a key decision-maker into the mediation.
- Mediators adopted new tactics with ODR that can be seen as a new type of mediation and not duplication of IPM online. The results reveal increased caucusing intensity not possible in IPM and new patterns of mediation communication using concurrent communications. Mediators report immediate private feedback to the mediator, increased use of document sharing, flexible scheduling tactics beyond the parameters set by a physical location, “one shot reconvening” to make one more attempt at settlement, and the flexibility to invite necessary additional participants.
- A majority of mediators saw similar or better quality and value of settlements for both parties in ODR.
- There is little mediator observation of “Zoom fatigue”.
- Mediators did not observe power imbalance issues between the parties. Open-ended comments suggest ODR has a leveling effect with the Charging Party (“CP”) being more comfortable in the Zoom setting.
- There is little evidence of technology issues interfering with the overall quality and results of the mediation. Where mediators report technological issues in ODR these are more likely to occur with the CP.
- The majority of mediators report they can read “body language” in ODR. One quarter report an issue observing body language on Zoom.
- The overwhelming majority of mediators did not report that case settlement was negatively affected by ODR. A minority of mediators observed a case or cases they believe did not settle due to the ODR format.
- Mediators found that ODR was effective across all EEOC Charge bases (race, gender, age, etc.).
- As a mediator gained additional experience in ODR, the numerous measures used herein to evaluate the effectiveness of ODR vis-a-vis IPM increased in favor of ODR.
- EEOC staff mediators, who mediated the majority of the ODR cases in this survey, reported consistently higher measures on the various measures for ODR as compared to the EEOC pro bono and contract mediators with much lower case volumes.
- For most mediators, the EEOC’s transition to ODR was the first time the mediator used ODR.
- Mediators did not observe many new “tactics” used by the parties in ODR.
- Twenty percent report higher settlement rates for their ODR cases with 9% reporting lower rates. A majority (62%) report that their settlement rate for ODR as IPM. Independent EEOC data confirms that ODR has a similar settlement rate (70.9%) as IPM (71.9%).
- Most mediators did not report a change in any of their tactics used to break an impasse.
- Mediators reported that ODR was easier to use than IPM; Their open-ended comments reported an increase in the quality of their work-life balance. There is some evidence that mediations are of shorter duration in ODR.
- The 2021 ODR survey measured the “repeat player effect” which hypothesizes that prior experience with counsel or a party is an advantage. It is seen as a positive factor for resolution.
- The responses of the pro bono and contract mediators show they believe that their experience at EEOC ODR is similar to workplace mediation in other forums (American Arbitration Association, Financial Industry Regulatory Authority, courts, etc.) for this period of time suggesting this EEOC data. is generalizable to other mediation forums.
- Access to justice is enhanced by the EEOC ODR program by increased employer personnel and decision-maker participation, ease of participation of other key attendees, increased employee access, power balancing, removal of the CP’s fear of being in the same location as the Employer for in some cases, and related benefits to both parties.
I plan on continuing to offer online mediations for the foreseeable future for all the reasons above. Mediation has self-determination as one of its pillars. The parties can choose whether they want or need online versus in-person mediation. Contact me if you want to learn more about or use me for a mediation.