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Amicus Curiae Blog (March 14, 2021)

Online Dispute Resolution: Mediating in the Time of COVID-19

By Adrienne Baker

It has been one year since our law school transitioned entirely online. The phrases “novel coronavirus” and “social distancing,” once peculiar word pairings, quickly became ubiquitous, upending our expectations for the foreseeable future. However, it’s clear that COVID-19 has catapulted Online Dispute Resolution (ODR) into the spotlight.  In this universally stressful year, there is great promise for online mediation.

While this recommendation may sound trite, the biggest message to note in ODR is to remember the body. When stressed, we inadvertently clench our teeth, increasing tension; our breathing also becomes shallow.1 In online dispute resolution, participants still experience many of the same stressors of mediation, but video conferencing makes them harder to see. Using neuroscience to inform ODR practices has the opportunity to integrate new methodologies that previously may have been considered peripheral; ultimately, however, these body-based techniques may provide crucial breakthroughs, particularly in ODR.

The pandemic means that most of us are spending more time on the computer. Frankly, there’s a great need to integrate more body-based techniques in general, and specifically in ODR. Throughout the course of a mediation, it is a good idea to take note of one’s physicality. Body posture has an effect on confidence, so while at the computer, be cognizant of slouched shoulders.2 Making efforts to relax the jaw, and taking deep breaths will also help reorient toward a calm demeanor.3 Additionally, something as simple as a cup of coffee or tea while sitting in front of the computer can help promote connection: the warmth of the beverage roots us in physicality and actually boost oxytocin, a hormone that is widely understood to promote empathy, trust, generosity and compassion.4 Other simple grounding techniques involve bringing scents into the room, like a candle, or nibbling chocolate which produces dopamine.5 Or, if participants focus on a happy photo nearby, that can help them think about better times when they were not entrenched in conflict.6 Another quick trick is to splash cold water on your face during a break; this indirectly slows down an elevated heart rate, which helps to lower stress.7   Lastly, asking participants questions about their values before or during the mediation can help them reorient toward positive regard.8 

Creating time for breaks away from the computer is essential; moreover, if that time can involve play, all the better: “Play may seem remote when we are in the throes of negotiation stuck conflict, but this may be the time we need it the most.”9 There is also evidence that positive human-dog interactions can lower cortisol levels, a stress hormone, and increase oxytocin; so if the mediator or participants have pets, it may be worthwhile to invite them into the room.10 

Subtle techniques have an impact on a person’s brain chemistry that is experiencing conflict.11 Stressed participants are more likely to misinterpret the intentions of the other side, and may be susceptible to reactive devaluation, the principle that “an offer from an adversary is less valued than the same offer from a neutral.”12 Grounding exercises are helpful for both mediators and participants alike and they will prove to be essential as ODR—at least for now— continues to be the new normal.

  1. Alex Korb, THE UPWARD SPIRAL: USING NEUROSCIENCE TO REVERSE THE COURSE OF DEPRESSION, ONE SMALL CHANGE AT A TIME 146-147. (New Harbinger Publ’ns, Inc., 2015). ↩︎
  2. Id. at143-144. ↩︎
  3. Id. ↩︎
  4. See Kenneth Cloke, Bringing Oxytocin into the Room: Notes on the Neurophysiology of Conflict, MEDIATE.COM (Jan. 2009), http://www.mediate.com/articles/cloke8.cfm.; see also, Korb, supra note 1, at 172. ↩︎
  5. Korb, supra note 1, at 172. ↩︎
  6. Id. ↩︎
  7. Id. at 140. ↩︎
  8. Cloke, supra note 4. ↩︎
  9. Michelle Le Baron, BRIDGING TROUBLED WATERS: CONFLICT RESOLUTION FROM THE HEART, 184 (2002); see also Cooley, supra note 12, at 367-368. ↩︎
  10. David A. Paul, Canine Assisted Mediation, 23 HARV. NEG. L. REV. 123, 148-151 (2017); see also Korb, supra note 2, at 174. ↩︎
  11. Id. ↩︎
  12. Tanz & McClinktock, supra note 14, at 45. ↩︎