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Lessons from ODR for Mediators

Lessons from ODR for Mediators

How do we reconcile the need for accountability in mediation with the core principles of confidentiality and flexibility? Some argue that the principle of confidentiality conflicts with the need for mediator accountability. So is confidentiality absolutely necessary in every case and at what cost to accountability and more broadly the confidence consumers have in the process of mediation?  What role could technology play in helping resolve this dilemma?

Orna is an expert in this field and is highly passionate about helping the mediation industry move forward. She shares her views on these big questions in this interview.

Please do add a comment, ask a questions or get the debate rolling in the comments section below. At the very least say a huge thank you to Orna. If you want to learn more, do look up her latest book - Digital Justice - which she has co-authored with Ethan Katsh.

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Transcript

Full Transcript

Aled: Hi everyone, my name is Aled Davies, founder of MediatorAcademy.com, Home of the Passionate Mediator. This is where we interview the very best mediators and thought leaders from right around the world. We learn about new opportunities in the field of mediation as well as how to overcome some of the challenges and dilemmas we sometimes face.

The big question for this interview is this, how do we reconcile the need for accountability mediation with the core principles of confidentiality and flexibility and what role could technology play in helping resolve this dilemma? My guest today is a senior lecturer at the Faculty of Law at the University of Haifa in Tel Aviv. Her areas of expertise are ADR, ODR and civil procedure, with research focusing on the relationship between formal and informal justice systems, dispute resolution system design, and the impact of technology on dispute resolution.

She is a fellow of the Haifa Forum of Law and Society, the Haifa Center for Law and Technology, and the Center for Information Technology and Dispute Resolution at UMass, Amherst. She is also adapted Law degree from Columbia University and was admitted to the Bar in Israel in1998 and in New York in 2001 and was a certified mediator in New York. It’s a real pleasure to welcome once again Orna Rabinovich-Einy to Mediator Academy. Orna, welcome.

Orna: Thank you. It’s my pleasure. Good to be here.

Aled: Good to have you on again, that’s fantastic. Okay, look let’s start with the problem that we have in the field of mediation. I’ll start with offline mediation.

Orna: Right.

Aled: And that is accountability or should I say the absence of accountability? Say a little bit more about the problem, Orna.

Orna: Okay, I think, first of all it’s important to recognize that there is a problem. I’m not sure everyone would hop on board and agree to the existence of the problem. So I think an important step is to actually name it as a problem, and I do think there is an accountability problem in mediation potentially in other ADR processes as well.

And this problem has seen for a long time as an insoluble problem, this part of what mediation an ADR are. You know they come with their great advantages and their great appeal but the cost is a cost to accountability and for many of the proponents this was an accepted fact and for many of the opponents this was exactly why they opposed it. Because you can’t know what’s going on in that room because it’s so flexible. Any mediator can do whatever they want.

It’s very hard for the parties to actually reflect on what happened in the room and to realize even if they are aware of what happened in the room that something inappropriate took place in the room or things kind of could have been performed better or there was a juncture in which a mediator actually made a decision, but that decision was made in his or her head, and the parties don’t even know what the other options would have been for the mediator to do in that situation.

The whole concept of having this very flexible intimate process takes place within a closed room behind closed doors where very little information is gathered and preserved about what actually took place is really why this process is both so wonderful and so problematic at the very same time.

Okay, so when I termed in my writing, in my earlier writing, as the accountability dilemma is that precisely the qualities that make mediation so attractive. It’s confidentiality and flexibility are also won’t stand in the way of reaching accountability at least in the way we’ve been accustomed to thinking about accountability in the way we do so in court. How do we reach accountability in court how do we ensure that judges are accountable?

Well, we have our way of doing it. We have everything it takes place of the open we have a clear pre-existing rule for judges how to conduct themselves, how to conduct a trial, how to intervene if they don’t do it. We may have them removed from the case, right. We may have them turned over an appeal. We have various other measures for making sure that they actually act the way they’re supposed to act and to make sure that the process is equitable, is fair and meets certain standards we expect of it.

Aled: Yeah.

Orna: And many of these measures just cannot be implemented as it is in the mediation setting. So there we have a problem. Now what some people say is, “Wait a minute, Orna, you are confused this is very, very different. We don’t have a judge here; we have a mediator and the parties are the ones who decide what’s going to happen the mediator just facilitates the conversation.” And then they say it’s not dangerous; there’s no accountability dilemma. Of course we have to know that the mediator is competent and follows the procedural guidelines. But it’s not as risky as a judge and there I have to say I disagree.

I think that informal power is also power and I think that a mediator or anyone who’s mediated I think knows they have a lot of power in the room and they could use it and they could be incompetent and lead to bad results and I think the informal power in many ways may be more dangerous than formal power.

Aled: Yes. We’ve got the sort of intentional bad practice and unintentional bad practice you know, when someone might be motivated by the result of getting the result and incentivized to get a result in some way. Somebody just might not know that that absolutely stuffing the conversation up or you know their unconscious bias is having some kind of influence over the parties or there steering the conversation a particular direction based on their own agenda, but no not really-you know very subtly.

Orna: I would see that as the core problem. I don’t think the intentional problematic behavior is very pervasive. I would think that the prevalent problems are those where people may be incompetent, may be unaware…

Aled: You know but I read your paper or not. Their paper and I think this isn’t a bigger thing and you need to turn your paper and I think actually by having this sort of confidentiality, the secrecy, cloak. It actually deprives mediators of the opportunity of learning, developing, and growing, right?

Orna: Right, right.

Aled: And improving their effectiveness.

Orna: Right.

Aled: You know I think that’s a huge thing. How do we learn and grow and develop and improve and learn from our experiences? You know I’m probably if I had video recorded all of my mediations, I’m sure there are half a dozen things that would at the very least that I could have done differently better with the benefit of somebody else giving me some feedback, or just challenging. Why did you say that then? What did you do that then? Why didn’t you do this?

Orna: And that’s natural obviously. You know we’re not creating robots here. So naturally that could happen and that will happen, and I think we’re talking about opportunities for self-reflection and improvement and learning. Definitely that’s a major point. Learning on the individual level as an A.D.R practitioner of the art we reach that and learning on an institutional level. If there’s an A.D.R provider, sorry we’re talking about O.D.R earlier as well.

So if there’s a provider of mediation services I think that group of individuals would also want to know what’s taking place within and under its auspices and in further best practices.

Aled: And also to develop the field of mediation you know.

Orna: Certainly.

Aled: It is you feel to develop the…

Orna: Certainly and certainly and if you think of there are so many questions that run through the field. You know questions about best practices about mediation schools. Should schools be ruled out? Is evaluative mediation, mediation? Should it be used in certain contexts? Should we, should parties have mandatory legal representation in certain contexts? Should we have co-mediation versus single mediators? Should we mandate mediation in certain areas? Perhaps in Family Mediation, we want to have a mediator who has a legal background and a mediator who has therapeutic background.

There’s been so many suggestions out there and very little empirical knowledge of what goes on to a large extent because of confidentiality measures. And I would say to overly extensive and overly extensive understanding of what confidentiality means and to what extent it is important to the parties themselves.

So part of what I question is have we just become so accustomed, is it easier for us to just say it’s all confidential. We’re not dealing with it, and you know I mean they were actually kind of happy with not looking over our shoulders. I know that when sometimes when people want to video tape my class, you know I’d rather know it’s going on, right. So there’s also this sense of it may be easier to continue doing things this way, but I think we’re definitely missing out as a field and as practitioners when we do that.

Aled: So one assumption that might need to be challenged is the idea of confidentiality. Why that is absolutely paramount. I mean because it may be the case that it is necessary I don’t know.

Orna: Right, I think in certain contexts, it actually serves certain parties, sometimes the powerful parties, not necessarily those we want to protect and may actually be abused. And I’m not sure want to we want to help that, we want to assist that.

In other contexts what I try to promote in my writing is a more nuanced understanding of confidentiality. It’s not either/or. It’s not you know we have confidentiality or we don’t. And when we have confidentiality, it doesn’t have to match the understanding of confidentiality we’ve held up until now, which means nothing is preserved. I take notes as a mediator, but I’ll destroy them later.

Why? Maybe I don’t have to destroy them later. Maybe I should actually keep them. How often are mediator notes subpoenaed? There’s a research project. I don’t think very often, I think actually very rarely. I’m saying this without having examined the question, but I think we’re losing out, what we’re losing is much greater than the risks we will be taking by preserving some of this information.

Aled: Whenever I say that in a mediation, I’ll be taking notes, but I’ll be destroying them. I have an image of me in front of a big furnace where I destroy all my mediation notes.

Orna: And the parties are probably like okay, he wants to destroy them, okay. But you know I’m not sure they’re that sensitive; certainly not in certain context, so it is a question.

Aled: Yeah so what are the existing accountability measures in mediation?

Orna: Rights. Okay, you know when we have standards as to what type of training and mediator should undergo. Typically limit certification requirements depending on you know various jurisdictions. Various ADR providers will set their own sort of additional layer of requirements, you know some ADR providers may require their mediators to undergo annual training.

That’s I would say that’s rare, but some do, and I think that’s obviously a good measure. Some in certifying their own group of mediators would require, for example, a videotape simulation and an analysis, some wouldn’t. Some would require you to undergo that annually which I think is actually a good idea. Some may have observers sit in in the first you know 5, 10, or 20 mediations. Some would have additional training requirements for specific fields.

And then in terms of after the fact, of ex post accountability measures, they will typically follow how many settlements have been reached, which I think is a very poor indicator of quality. I’m actually very concerned when I hear very high rate of agreements reached. I’m worried about coercion, and I’m worried about what types of tactics these mediators employ when I hear it’s around the 50, 60, I’m typically happier than 90 or 95, okay. It depends again you know you never know, but I think that could actually serve as a sort of cautionary indicator…

Aled: What leads you to feel that suspicious or be suspicious about high rates, is that of data driven or is that the sense or something else?

Orna: Well I think, I’m saying this very loosely, but from a from the various research I’ve read over the years, your sort of typical settlement rates, normal rates would be around 60, anywhere between 50 and 70 is sort of normal. Above 90, I worry and I worry both because it’s sort of it’s not within the scope that you typically hear about, and I have to say this project stems from a personal experience.

And I always tell my students in my training one of my mentors was a bad mediator. So I actually think I learned more than if I had been with someone who was very good and really I mean it drove my research agenda afterwards, having been exposed to that. So part of my training during the mediation training was to sit on in a mediation.

And I have to say the mediation provider actually responded very well to the feedback that I raised together with my fellow trainee, and what we saw there actually colored much of my research. You know if we hadn’t spoken that would have stayed in our own and I felt that what took place was very powerful and abusive and impacted people who were disempowered.

So that really, I saw how ineffective the typical measures we follow in that case, how even the satisfaction forms that the parties might have filled or might not have filled, I don’t think they would have uncovered what took place in that room.

Aled: Yeah, you know thinking about the satisfaction forms, that’s assuming that the parties are informed buyers of mediation services and really understand the difference between different practices of mediation, they really understand the notion of self-determination, what that really means. And of course they’re right in the heat of the dispute, so they’re not going to be thinking about, oh the mediator said something. I wonder if that is consistent or inconsistent. That’s not what they’re going to be thinking about.

Orna: So I’m not saying that we don’t need them at all. They’re not redundant. Okay, but I do say they’re certainly insufficient as a measure. So I certainly would want to hear how parties felt, did they feel that the mediator listened to them, and in what way did they feel the mediator helped them.

And it certainly would reflect something about the process but I’m sure they missed a lot. They were busy with being angry for probably at least the first half of the mediation, right. And they’re thinking about what they need to do, what their options are, very difficult to count on them as sole evaluators of the process and of the competence of the mediator

Yeah, I agree so that’s definitely an important measure. It should be there, but we should think of additional measures that would provide also some kind of more external evaluation of what took place. And I think this is becoming all the more important as mediation becomes such an inherent part of our justice system.

So I obviously I wouldn’t want people to be taken advantage of anywhere, or abused in any context, but it we’re taking people who filed a lawsuit or would like to file a lawsuit and we’re actively referring them as the state, as the justice system to sit in a room with a mediator. We have to ensure that they receive high quality services that are fair and effective and meet a standard that we feel comfortable with.

Aled: Yeah I agreed, absolutely agreed. Okay, so that’s the problem. I mean where have you gotten to with your thinking because you know your thinking has being influenced by your personal experience and of course your interest in ODR and technology and how technology can be used to scale access to justice and so on. Where is your thinking right now? How can we use technology, what lessons can we learn from technology to help improve accountability in offline mediation as well as how it’s currently being in online mediation?

Orna: Right, so I think you know in a way what I’ve written has become all the more true. Because in offline settings as well, we employ technology. I don’t think there is any mediation center that doesn’t store its files, you know information about its files in digital form nowadays.

Actually when I was training, they had a lot of paper. I’m sure that today that stuff that’s virtually nonexistent and this actually makes learning and monitoring much easier even if the mediation itself takes place face to face because you have a lot of data. You can store it in one place and then you can cross check the data and see if anything comes up.

But what’s important…you know I started thinking about these issues because initially this was perceived as a big disadvantage of online dispute resolution. Everyone was like, yeah but you can’t ensure confidentiality, everything’s documented, everything’s written. And then you would say, yeah, but see how it works on eBay, and they would say yeah, but those are eBay disputes. And then you would say “Well, actually people really like it in family disputes as well.”

And then you know that got me thinking. Is this a disadvantage or is it just different then what we are used to be doing? And maybe different isn’t so bad and maybe different can be changed in certain contexts, but as we’ve I think we in the last decade since this article came out really, I think we’re seeing several changes take place. A, there is more technology in what we would call offline as well, right, so even when we’re conducting just traditional ADR there’s much more technology involved then there used to be.

Okay, so that’s one thing. Second thing I think is our preferences regarding privacy have changed dramatically if you think about people’s habits online Facebook, Twitter whatever, the amount of information people just voluntarily disclose and even if it is because they don’t understand the implications of disclosing so much information. I think by now we’re all much more aware we understand that everywhere we speak people are going to be taping us with their phones right. Phones are computers. They’re not phones.

So everything can be on YouTube within seconds. Our employer is going to know what we think about them when we write it on Facebook. Many of the things eventually come out, so over time I think we view this as less catastrophic as we used to see it, and we’re going to have to assign less weight to these things when they do come out.

So I think that’s an inevitable development even though in the meanwhile we’re still kind of anguishing over the information that gets out. Over time I think that’s going to be another effect we will see, and I think that over time we will also see technology much more present through hybrid processes.

So again that’s going to increase the amount of information we actually have about mediations taking place because some of it is going to be stored digitally automatically. So some of the points I raised in that piece, which I think are still true, are the significance of real-time information as opposed to information collected ex post. The significance of follow up, which has nothing to do with technology, and nowadays no one goes back, almost no one goes back to people who have mediated six months later, a year later and asks them what goes on.

You know there is this truism that mediated agreements are more stable. But you know there is some research there is some research out there that questions that, and I don’t think we’ve done enough to follow up on that and learn. Where it has been more stable, what has made it more stable? Again learning and improving the field and improving the process and its outcomes.

So that’s not only the resolution rate, but do they stick, these resolutions, an important point. So real-time information, after the fact information over time, and caretakers of information understanding that instead of making confidentiality sacred, let’s make information about mediation sacred.

We need to understand that someone has to follow up on this information, dissect it, understand what it means, and learn from it and think about it and then how do we aggregate that’s a really important point you raised. How do we aggregate information from the individual practitioner, from the individual ADR center to something that’s much broader and creates learning in the field as a whole?

Aled: Yeah you know then we can make better decisions and choices about which direction the field goes in. I know this debate around evaluative mediation is it consistent with self, you know where does it fit in? Then you’ve got this sort of transformative mediation, which I think is on the other side of the spectrum. And then facilitative, it seems to be on a sliding scale.

And you know I think we can use data-at the moment I get the impression that we’ve got evangelists in all different camps but they’re making, they’re voicing opinions or making choices and decisions not based on data, but based on whim. I think there’s a big black hole of missing information that can help us move the field forward.

I have a real privilege of being able to do all these interviews. I have a real different perspective of mediation than I did have a couple of years ago when I started, and it just seems I just stand back and I speak to people like yourself and others, and I think it’s just seems to be a small minority of people concerned about you know the lack of rigor in mediation, both not just the training but the evaluation the monitoring. It just seems to be a little bit cowboy.

Orna: Yeah, yeah. I agree and this is you know this might have been appropriate in the early days, but I think we have grown up. We’re not even teenagers now. Mediation is middle aged, and it should act that way.

So I completely agree. I think it’s super important. I think many of the problems that we’ve seen with mediation programs on the ground had to do with quality. Certainly in Israel I know that’s true. And you know unless you incorporate effective quality control measures to ensure that the process is accountable, it’s going to create more harm than…

Aled: I always wonder to what extent is the absence of this level of accountability and rigor holding back the field? Is it that the general public had concerns about the field of mediation, the rigor and accountability, and that’s why not more people are going, opting for it? Is it on some sort of psychoanalytic level that the mediation field as a whole isn’t advancing forward because everyone’s you know of the same opinion that hold on what we’re doing is behind closed doors. I’m not quite sure that I want other people to see me doing this.

Orna: Yeah.

Aled: So let’s just keep it in this club for the time being. You know I don’t know. It’s really peculiar. Every mediator that I speak to is because of mediation and every party that goes through the process appreciates it and feel like they have a voice. Yet it’s you know it’s only a minority of people take the opportunity, and it’s just peculiar.

Orna: You know I think it’s always difficult to change the way things are done and there’s something very strong about the training and the sort of practices that continue to be taught to people in the field. And I think very few people question them and it’s convenient to just follow the way things have been done.

I think there is a huge opportunity for courts to require this. You know most of ADR providers and mediators are desperate for cases. It’s very easy to require them to meet certain quality control measures as a precondition to see the cases and maybe the court should have a more active role in evaluating what takes place within and not only encourage obviously internal monitoring, but also be more active in the external monitoring parts.

Aled: Yeah and have you come across any examples in the off line mediation world where groups or organizations are endeavoring to improve accountability in mediation.

Orna: I think there are many groups thinking about these issues and are engaged in different types of models for doing that. I think a really impressive experience was the experience at redress. Redress is the system, actually of transformative mediation, which is a very unique model of mediation, which I’m not sure would fit all people who are mediating, but it is very powerful and interesting mediation established by Bush and Folger in originally 1994, but developed a lot in the later years. And this model was chosen for the US Postal Services internal dispute resolution system for discrimination cases.

And the system is pretty amazing. I mean the USPS has a million employees maybe over now, and this system was rolled out throughout the US initially as a pilot, but later throughout the US all with transformative mediators. Initially they had internal mediators, later they had a different model where they employed external mediators who were trained by the USPS, by the unit in charge of the redress program.

And I think it was a very interesting experience I haven’t followed the most recent writings on it, but Professor Lisa Bingham was really wonderful, was a partner to this whole experience. And so from the get go there was academic research alongside the practice of mediation.

And I have to say that the transformative folks themselves took this as a serious opportunity for them to rethink and to conceptualize what are their particular goals. What it means to be a transformative mediation, and how do we assess whether someone is actually a transformative mediation? So they actually have videos out there with transcripts where they highlight and demonstrate what is and what not a transformative mediation.

They created those hallmarks of what constitutes transformative mediation. They made it a teachable school and one that you can actually evaluate and assess. You can disagree with it ideologically, but they made it very easy to understand and I think relatively easy-not easy, it’s never easy-but easier to discern whether someone is actually competent transformative mediator or not.

So and they really employed both qualitative and quantitative measures for doing that, handing out tens of thousands of questionnaires that measure both the measure of procedural justice elements and whether that conduct is transformative or not and also they’ve had a focus groups with different mediators discussing particular interventions. So they had a whole host of measures put in, which I think is a super interesting example.

Aled: Yeah because if you talk you know I’m thinking about the idea of monitoring because one of the things you talk about in your paper is real time data isn’t it. And you know one of the one of the lessons from ODR is the capacity of capturing, particularly in the [square trade] example being able to capture the real time data about decision points and so on.

Thinking about bringing that into an offline setting, actually one could have an observer or somebody even record up mediation but just analyze the mediator’s interventions and behavior to see to what extent the acting consistent with the approach that they’re espousing.

Orna: Right, right so I think people have claimed that if you place a camera then the parties will object or feel uncomfortable. I’m not sure to what extent this is still true.

Aled: Yeah.

Orna: Again that’s something you know you could ask the parties. I wouldn’t and also here again I think it’s not an all or nothing issue. Even if you decide that twice a year you do that or you don’t even record or maybe you just record voices. Of course if the parties don’t object, maybe they are more comfortable with that. You record the voices or you just have an observer sit there and transcribe and write down the main interventions and then go over that with you. Someone is very experienced and can do it well.

We’ve done that in training all the time. Someone sits and write something and talks to us about it. So and it’s better than nothing. And even if you do it two or three times a year it’s very, very helpful I think. So it doesn’t have to be. Obviously there are costs to having someone there all the time. I’m not sure we want to do that you know, and a co-mediator is not going to be able to perform that because they’re doing something else. It might help another respects to ensure someone doesn’t do great harm right but it’s not going to do when we’re talking about.

So I think yeah I think there are many, many options and we just need to be created. First of all, we need to recognize the need for that and then be creative in thinking about how we can actually generate real-time information, not always not in every case, but in a sufficient number of cases to ensure that we actually learn and improve.

Aled: Yeah, okay. So that’s the sort of real-time analysis. I think we certainly in the United Kingdom, we need a more sort of infrastructure in place to be able to implement something like that on a big scale because there are just so many disparate groups all sort of jostling for position. It’s a chicken or the egg it’s a real chicken and egg scenario. It feels like in that in the United Kingdom.

And you also talked about sort of post evaluation and following up with parties. What other accountability measures if any could we you know from the ODR bring into offline?

Orna: I think you know we talk a lot about the flexibility of the process, which is a wonderful element of mediation. I think it is often less flexible than we would even like it to be right because we’ve actually come accustomed to perform it in a certain way and reach typical results. And we’re not always as creative and flexible as we would like it to be, but it’s certainly an element.

I think without detracting from the processes flexibility, we can actually incorporate some consistency in our thinking about the process and how to perform it in a way that ensures appropriate mediator conduct, that ensures that issues don’t get forgotten. So we could think of a list of questions that the mediator would go through before start in to work on an agreement. Okay, or before finalizing the mediation.

So it doesn’t even have to be a scheme that gives all the answers but something that raises important points that we found you know after we’ve watched ten mediations. We’ve seen that there is a problem that comes up. So we could actually try to make the practice more consistent in a way that we don’t overlook certain problems.

Aled: Yeah, almost like a pro forma for particular stages in the mediation process. There actually is something else that I picked up in your paper was a mediator moving through the various phases of the process, the parties may not necessarily understand where they are in the process.

Orna: So maybe we could use for example we could use technology even for teaching purposes. So before someone comes in to mediation you can email them a link to a five-minute presentation on what the process is, how it’s going to be structured, instead of talking on the phone, they can watch it when they want. They can stop in the middle or they can you know they can do whatever they want to. Maybe that’s more effective. I’m not sure, but maybe.

Aled: Yeah absolutely. Okay, any other thoughts, I mean how has your thinking moved on since that paper? Where are you now?

Orna: Well, I think it’s unfortunately quality control is still a major issue in mediation. Again I think technology is becoming more closely tied to traditional ADR, and over time it will become even more so.

So I think that’s actually a helpful point that we need to think of technology and that I think hasn’t happened to think of technology as a quality control enhancer as something that can help us improve our practice offline you know.

So again we think of technology as relevant for ODR, but I think we should think of it in a broader sense not just when we’re online or conducting a process on why but how digitally stored data can help us improve our practice when we conduct it offline. So that’s sort of I think a major challenge, but I think the technology’s there. We just need to be willing to use it. I think there should be more incentives to use it and to document data and to do stuff with the data.

So and I definitely think the justice system should play a major role and make sure that it also can use technology to better enforce these preconditions to case referrals and add another layer of quality control and then stop referring cases of someone doesn’t give me doesn’t submit an extensive enough report that shows that they’ve studied what they’ve been doing and how they can improve, and they’ve highlighted where the problematic areas that they’ve discerned. And actually not punish someone for uncovering problematic areas of practice; that’s so wonderful that they uncover problems.

Everyone has problematic areas of practice and the fact that they’ve been rigorous enough in uncovering these areas and are actually disclosing them I think is something that should be praised and not punished and is actually a good sign for someone who wants to refer cases to them.

Aled: So incentivizing reflective practice.

Orna: Certainly that’s a major part.

Aled: Yeah, my community mediation service that I volunteer at. They keep really good data on the cases over the course of the year. I mean they have to because of the funding agreements that they have with the various authorities and charities. So that you know they monitor equal opportunities, data, number of cases that have been resolved and so on, and I don’t know that they keep a correlation between the cases resolved and who mediated. And I can imagine going back to a conversation earlier, anyone who’s got a 90 to 95 percent success rate, be suspicious or it’s almost a bell curve, anyone in the sweet spot you know…

Orna: And again they may be just wonderful, but you may want to look at it.

Aled: Yeah, yes.

Orna: That’s all I am saying, maybe that someone, you want to look at five cases a year, and not two just to make sure everything’s okay. Maybe you want to call up some of the people whose cases have been mediated before that person and ensure you know what actually took place there.

Aled: Yeah, on the assumption that they’re obviously doing something really well. What can we learn from it, that’s the assumption? I can just see it mediators going out there and changing their success ratios not to sort of 90 percent, but to 50 to 60 percent.

Orna: Exactly.

Aled: Just to conform…

Orna: But how we have to recognize that especially since mediators get cases from courts, there are significant pressures to reach a high resolution right. And that’s the danger.

Aled: Yeah.

Orna: And that’s when people start getting more aggressive as mediators and that’s a danger and that’s why I’m worried.

Aled: So the incentive is on the outcome rather than the process.

Orna: Yes the courts definitely look at that and that’s an educational task for judges, court administrators as well as us in the mediation field.

Aled: I did an interview with a chap awhile back and he talked about it’s never been a more exciting time to be a mediator. I feel like that. Speaking to you now I’m just thinking there is a huge opportunity to really develop the field and transform mediation into something really rigorous, robust, consistent, that the people have a real trust in.

Orna: Yes, but without stifling creativity and flexibility. I think in many respects the answer to me when I think of mediation is very contextual. Different things are right for different people and different case types and different contexts. But again we need to learn about that too and to learn about that we need to have people present and people reflect about what took place in the room to create knowledge and share that knowledge. And that’s also very, very important to create a certain infrastructure of sharing knowledge and learning from that joint resource that can be created.

Aled: Well, Orna, this has been a real eye opener, really I am feeling really motivated to go and mediate and get someone sitting in on me, and I’m also interested in the redress program. I interviewed Professor Folger a while back. But I might try follow up with him because I think…

Orna: Lisa Bingham would be a great…

Aled: Lisa Bingham okay, I will get touch with her.

Orna: Okay, great.

Aled: Orna, listen it’s been lovely to see you again. Thank you so much for your time and generosity. Have a great day and maybe-well when’s the book due to come out.

Orna: Oh it’ll take time, but hopefully October 2015.

Aled: Okay, do you have a working title for it.

Orna: Yes, Digital Justice by Ethan Katsh and myself.

Aled: Digital Justice. Okay. All right so if you’re watching the interview, Digital Justice. Keep your eyes peeled for that. It will be a cracker.

Orna: Thank you.

About the mediator

Orna Rabinovich Profile Pic

Orna Rabinovich-Einy is a senior lecturer (with tenure) at the Faculty of Law at the University of Haifa. Her areas of expertise are alternative dispute resolution (ADR), online dispute resolution (ODR), and civil procedure, with research focusing on the relationship between formal and informal justice systems, dispute resolution system design and the impact of technology on dispute resolution. Rabinovich-Einy is a fellow of the Haifa Forum of... View Mediator