Mediating Distance: Online Tools for Reconciliation?
This comment is as much a speculation as it is a note on aspects of contemporary online dispute resolution (ODR) practice. The speculation is as to the wider potential of ODR, beyond the current areas of attention in the management of disputes which arise in the online environment, whether that is the informal context of chat rooms and e-groups or the commercial environment of cross-border, arm’s-length transactions. The questions I raise here arise from a combination of experience: first, experience in the regular face to face mediation of disputes; second, in the early mediation of online disputes; and third, in the field of conflict management capacity building in internal, intense conflicts. Particularly following work with the World Health Organization over the last three years in Sri Lanka, I am interested in raising several questions concerning the potential uses for online communication and facilitation, in assisting the process of re-building fractured lines of communication, building small steps towards confidence and reliable information, and engaging a wider group of stakeholders in the processes of peace making, reconciliation and reconstruction.
The attention of those involved in the development of ODR has been focussed primarily on two areas: first, in the management of conflicts which have arisen in the burgeoning and borderless world of the internet, as a result of flaming, abuse, spamming, and plain miscommunication; and second, in the design of online resources to deal with online transactions (ranging from provider resources such as e-Bay, through to national and international protocols such as ICANN, WIPO, and OECD standards).
In those two settings, specific protocols and standards are necessary because of the arm’s-length (and ocean’s-length) nature of transactions and because of the probability that the parties will never meet face to face. These are tools for the management and mediation of physical distance.
The developments in these two areas also echo the experience across a number of legal systems: the expansion of the number of process-options for the management of disputes and – perhaps of greater interest – the expansion of the number of individuals and agencies playing some role in the process. While it may not be a new feature of complex legal and dispute resolution systems (and this is not solely a reference to “Western” legal systems) there does seem to be increasing attention paid to the fact that the spectrum of dispute-processing options and agencies invokes an interesting jurisprudence and can itself create problems of professional boundaries, ‘turf’ conflicts and so on. The development of new tools, or the adaptation of traditional ones is one side of the picture; the other involves the management of the relationships between the various agencies and – ideally - the integration of the diverse resources of dispute management.
Consider, now, a third setting, in which the parties are separated not so much by physical distance but rather by emotional distance or by deeply conflicted relationships. In each case – in virtual communities, e-commerce, and intense conflict – the common ground is separation and distance. In each case the need is to find and develop resources for managing communication, resolving difference and, perhaps, achieving a degree of reconciliation.
This reflection on the potential of online communication in heavily conflicted relationships arises from the linking of two ideas: first, the development of ODR in the more familiar areas has illustrated the capacity to adapt the tools of mediation, arbitration, facilitation and so on to new patterns of trade, communication and relationships; and second, in the field of internal, intra-state conflicts, and 'intractable' conflicts, increasing use is made of processes such as interactive conflict resolution, capacity building training workshops, and comparable processes designed to ease the tensions, facilitate dialogue, and create pathways towards decision making. By way of parallel, we can say that in the varied responses to international and intra-state conflicts there’s a sense of exploration and a degree of experimentation with new tools, at varying levels of intervention, principally aimed at ways of initiating and maintaining dialogue and creating the ‘culture of negotiation’; it’s not wildly speculative to imagine ODR as one additional element and resource in that experimentation.
My concern then is to consider whether this same technology – email, the internet, video conferencing and so on - can be turned to building dialogue and confidence between those in conflict. Part of the thinking in relation to conflict transformation (in intractable conflicts) relates to the creation of forms of greater participation and representation, tools for reducing information failures, suspicion and misinformation. Thus the question - and it is only that at the moment - is as to whether online resources can contribute to that. In particular, in settings of fractured communication and damaged relationships, there is a potential for the indirect medium of online and facilitated communication to ease the parties on the path towards reconciliation. This, I imagine, is less a matter of current ODR practitioners and resources expanding into a new field of work, and more one of those practitioners currently working in the field of international conflicts taking a leaf out of the book of emerging ODR practice and protocols.
As a parallel with the developments in online mediation in the first of the two settings outlined before, a central feature of this possible development will be the role of non-official, non-state actors, though, as is the case with each of those areas, there is an increasing need for co-ordination between, for example, the private schemes for consumer redress and the state- or internationally-sponsored processes such as those of the World Intellectual Property Organisation.
With a view to developing a conversation with practitioners in the ODR field about the potential application of ODR resources to ‘intractable’ conflicts, I will simply raise here several issues which seem to me to be likely to shape practice:
· First, there is likely to be a difference in aims between the primarily settlement-oriented processes of consumer-based disputes, and the need for mediated interaction and, ideally, transformation in this wider application. Where the parties are separated by affective and relational conflicts, and where relationships have deteriorated to the point of violence, the role of both official and unofficial actors in promoting engagement is to take the preliminary steps towards rebuilding confidence and communication, rather than seeking to arrive at agreed settlements online. To the extent that all negotiations consist of series of small and incremental steps rather than single large agreements, it’s likely that facilitated communication online can create the possibility of agreement rather than achieving the details of final agreements.
· Second, and following from that limited objective noted above, the capacity here of facilitated online communication is that of creating means for telling stories, for creating narratives through this mediated means. Perhaps the best and most effective parallel is with the work of the Public Conversations Project whose stated aim in dealing with entrenched social conflicts is less that of achieving agreement than that of creating the space, through carefully facilitated dialogue, in which participants can tell and hear the respective stories of those involved. The aim is neither to achieve settlement nor to persuade one side or the other to shift their perspective, but rather involves the recognition that, in hearing and telling our stories we diminish uncertainties, reduce stereotypes and associated fears, and create the opportunities for a different kind and tone of conversation. If, as is suggested by students of contemporary intra-state conflicts, at least part of the problem lies in the ease of negative stereotyping, in information failures, the corresponding diminution of confidence in the intentions and goodwill of the others, at the very least facilitated online dialogue might – with the reduced risk of the non-face to face setting – allow those narratives to emerge.
· Third, at a more mundane level, the use of online resources in this context may simply allow for greater ease of communication between the various agencies involved. Most readers will by now have experienced the kind of pre-conference planning that can be done entirely by email, internet registration and fund transfers through secure servers. What I have in mind is likely to require something far simpler than that by way of facilitated dialogue and managed interchanges. As intimated before, peacebuilding, as with the wider field of dispute management, involves a number of different agencies, both official and unofficial. Assuming the availability of appropriate technical resources, online communication is likely to be able to assist with both the facilitation of ‘horizontal’ communications, between the parties in conflict, and with ‘vertical’ communications, between the agencies involved in various aspects of conflict management.
What would such a process require and involve? Drawing both on the experience of those developing the processes of ODR and of those involved in various aspects of peacebuilding, I suggest that at least the following elements are important:
a) Technology availability: clearly, none of this will happen without the basic resources of computing and email and/or internet access. This does not, however, need to involve highly developed or advanced resources: what matters here is the dispersed availability of basic tools to allow for the kind of managed communication anticipated in this discussion. The point of this exercise is less one of providing complex facilities and rather one of co-opting the core capacities of online communication in order to mediate the distances that have been created by conflicts, violence and damaged relations.
b) Facilitators: as in any kind of conflict management, there will be issues of entry, invitation, mandate, and authority. Given the emerging role of non-state actors at all levels of conflict management, those issues are less likely to be resolved by the authoritative fiat of officialdom, but rather by the acceptability and perceived qualities of the third party. As indicated earlier, rather than seeing this as a new field of potential practice, it may make more sense to see this as a matter of resources of which those already involved may make new or better use
c) Trust-building: online communication and facilitation may have both advantages and disadvantages in the process of building trust. On the one hand, we may find it easier to build trust and closer relationships in face to face communication; on the other, the damaged relationships in intense conflicts may make such face to face communication less likely, more fraught with perceived risk, and therefore may mean that the indirect communication through, say, email is more likely to be acceptable.
d) Bridging information gaps: where conflicts both reflect and exacerbate failures in reliable information about the respective needs and intentions of the parties, it may be a specific aim of facilitated online communication and the eliciting of parties’ stories of conflict to develop a common pool of information.
e) Developing credible commitments: while it may not be the primary aim of online facilitation in intense conflicts to reach agreements, it may well be realistic to imagine that the managed, arm’s-length communication anticipated here could elicit the preliminary commitments that will, in due course, permit a return to direct negotiations.
f) Translation, where necessary: in the same way that face to face communications may require translation, that same need may prevail in online communication.
g) Intercultural mediation: similarly, intense conflicts may reflect, or exacerbate intercultural distance. While online communication might have the effect of flattening differences it’s also as important in this context as in face to face settings to recognize and manage distances and perceptions reflecting cultural experience. It is beyond the scope of this current brief paper to elaborate on this point and, for most readers, it’s unlikely to be necessary to do so. The point is only raised here to flag the potential significance of this element in online mediation and facilitation in intense conflicts.
The aim of this note has been to consider the potential for developing the resources and insights of online dispute resolution into the typically more fraught domain of intra-state and violent conflicts. To the extent that we gather experience in “mediating distance” in specifically online settings, and to the extent that there is a willingness and need to explore new resources in the management and transformation of intense conflict, it seems realistic to anticipate the adoption of online strategies in such conflicts. Unlike the currently familiar online settings of the virtual community and e-commerce, however, the use of online resources is likely to be only a part – perhaps only a small part – of the tool kit of third parties in intense conflicts. Whereas the physical distance between the parties in the first two settings creates the need for and dictates the priority of online resolution tools, the relational distance of parties involved in intense conflicts suggests that online resources are likely to be useful in order to create the degree of confidence in reliable information and communication to permit the parties to begin to restore face to face dialogue. In the same way that participatory, face to face training workshops and capacity building programmes provide personal and interpersonal resources and create the possibility of the move back to constructive dialogue, so too might online facilitated communication restore sufficient confidence to allow the parties to take the chance on direct contact.
 Ian Macduff, “Flames on the Wires: Mediating from an Electronic Cottage,” Negotiation Journal, 10: 5 (1994)
 Ian Macduff, “Capacity Building in Conflict Transformation: Integrating Responses to Internal Conflicts”, Jnl of Humanitarian Assistance, http://www.jha.ac/articles/a073.htm
 see, for example, Anna DuVal Smith, “Problems of Conflict Management in Virtual Communities,” P Kollock and M Smith (eds) Communities in Cyberspace, (Routledge Press, 1998); pre-publication draft at http://mcad.cgc.maricopa.edu/anna/cinc.htm
 “It is possible to talk . . . of a re-establishment and intensification of legal pluralism – that is, the complex interplay of different, relatively autonomous regulatory systems whose interactions constitute legal order. This development is apparent not just within the borders of municipal legal systems but internationally . . . . In such circumstances . . . the concept of law has necessarily been loosened considerably. . . . [T]he newer images of legality which highlight the growth, diversity, and complexity of regulation . . . imply also a proliferation of sites or settings of adjudication, interpretation, and the application of legal doctrine.” Roger Cotterrell, “Law’s community: legal theory and the image of legality,” Journal of Law & Society, 19: 405, 410 & 415 (1992)
 see, for example, D A Lake and D Rothchild, The International Spread of Ethnic Conflict: Fear, Diffusion and Escalation, (Princeton University Press, 1998); R Ganguly & I Macduff (eds) Ethnic Conflict and Secessionism in Asia (Sage, forthcoming 2002).
 Note that significance of this development in international law has led to the founding of a new journal specifically to reflect the role of non-state agencies: Non-State Actors and International Law (Kluwer; http://www.kluweronline.com/issn/1567-7125)
 "Our lives are rooted in story. Our stories are our lives. We find out who we are by the stories we tell and are told. The lives we live and the conflicts we embrace are held together by motif and myth. If we are to gain a sense of who we are, where we stand in the world, what our relationship in and with the world is to be, then we must see how our story works. A story is a way to articulate what it is we are living through and how the world lives in us as we live in it ... Stories give meaning to common and shared experience."
Eli Wiesel, quoted in J. Elkins, "The quest for meaning: narrative accounts of legal education," Jnl of Legal Education v. 38 (Dec. '88) p. 577-98
© 2002 Center for Information Technology and Dispute Resolution