As a way to efficiently resolve cases without drawing on judicial resources, courts are starting to provide litigants with the opportunity to engage in alternative dispute resolution.1 ADR programs vary from court to court but Maine provides an example of how a mandatory ADR program can work.2 Maine has a presumptive ADR program for its civil cases but there are some exemptions or opportunities for waiver.3 Rule 16b requires at least one ADR conference which is where the parties engage in mediation, non-binding arbitration or early neutral evaluation facilitated by a neutral agreed upon by the parties.4 While in the past, an ADR conference may have meant begrudgingly sitting across from an opponent that had no interest in coming to an agreement, technology proposes the online dispute resolution (“ODR”) option.5 Both face to face and online ADR have their advantages and disadvantages, however, ODR offers parties the opportunity to discuss the merits without the distractions associated with face to face ADR.
The benefit of face to face ADR is the ability to observe your opponent in person, react to their body language, and physically control the situation. An experienced attorney can fluster his opponent a few different ways. Firstly, the attorney can take control of the pace of the discussions, speeding through disadvantageous issues and focusing on advantageous issues.6 Secondly, confidence goes a long way.7 If an attorney conducts herself in a manner that conveys mastery of the subject, then the opponent may second guess them self and be more willing to give in.8 Thirdly, an attorney has the opportunity to tell when to move on to a new topic.9 The attorney can look into the eyes of the other attorney or observe their crossed arms and legs, and realize that the bulldog tactic may not be working.10 The attorney can switch to a trusting character. For example, people are often more comfortable in situations where they have contact with one another.11 A mere handshake at the beginning of a transaction if done correctly can trigger positive feelings.12 Essentially, engaging in face to face ADR for the experienced attorney well versed in reading and reacting to the body language of their opponent can be quite beneficial. The problem with face to face ADR, however, is that while an attorney is interpreting body language, the actual merits of the case may not garner enough attention.
There are also a few aspects that can easily make a face to face negotiation proceed badly. ADR involving non-citizens from foreign countries could lead to misinterpretation based on negotiation styles.13 While Japanese negotiation is often conducted in a non-confrontational manner, Russians view negotiation as a debating match in which strict attention is paid to detail and knowledge of facts.14 Furthermore, even if there is not a cultural barrier based on nationality, racial differences can hamper an ADR session as well.15 The race of the mediator or the negotiations can provoke pre-conceived notions about the willingness to agree and trustworthiness.16 These notions along with general stereotypes and misunderstandings between people of different races, can hurt the ADR process.17 Lastly, face to face negotiations can be a charged atmosphere and it is reasonable that removing the face to face elements allows parties to cool down and take more time to think about what they want to say instead of just blurting out phrases.18 Essentially, face to face ADR has the potential to be unsuccessful based on misinterpretation and false beliefs related to race and culture.
Face to Face ADR can cut either way for a client. On one hand, a hand shake and a kind face with a controlling demeanor can facilitate a positive agreement for the client.19 On the other hand, misunderstanding body language, culture or pre-conceived racial notions, can lead to a stand-off that results in taking a case to trial that was easily resolvable.20 Online dispute resolution is not the perfect solution. Negotiating using technology can seem impersonal but it is the best option because it allows each side to present their case and focus on the merits of the cases rather than using physical presence to manipulate a situation.
5 Sarah Rogers, Online Dispute Resolution: An Option for Mediation in the Midst of Gendered Violence, 24 Ohio St. J. on Disp. Resol. 349 (2009).
6 Charles A. Goldstein & Sarah L. Weber, The Art of Negotiating, 37 N.Y.L. Sch. L. Rev. 325 (1992)
19 Trial Communication Skills § 2:2 (2d ed.)