In-Person or Via Technology?: Drawing on Psychology to Choose and Design Dispute Resolution Processes

Abstract

COVID-19 fostered a remote technology boom in the world of dispute resolution. Pre-pandemic, adoption of technical innovation in dispute resolution was slow moving. Some attorneys, courts, arbitrators, mediators and others did use technology, including telephone, e-mail, text, or videoconferences, or more ambitious online dispute resolution (ODR). But, to the chagrin of technology advocates, many conducted most dispute resolution largely in-person. The pandemic effectively put the emerging technological efforts on steroids. Even the most technologically challenged quickly began to replace in-person dispute resolution with videoconferencing, texting, and other technology. Courts throughout the world canceled all or most in-person trials, hearings, conferences, and appeals and began to experiment with using technologically-assisted alternatives. The U.S. Supreme Court held oral arguments using telephone conference calls. Attorneys, mediators, and arbitrators relied far more heavily on phone, e-mail, text, and video. Some courts expanded programs to help disputants obtain information and even resolve their disputes online. “Thanks” to the pandemic, the traditionally slow-moving and technology-resistant legal community suddenly embraced many kinds of technology with both arms and more.

This move to technology-mediated dispute resolution was met with greater enthusiasm than many might have anticipated, leading to predictions that we may never return to the world of extensive reliance on in-person dispute resolution. As the pandemic endured, lawyers, neutrals, and court administrators found that practices adopted out of desperation could be worth preserving post-pandemic. Michigan Supreme Court Chief Justice Bridget Mary McCormack, in describing “temporary” pandemic adjustments, noted: “I don’t think that things will ever return to the way they were, and I think that is a good thing.” Even many who were previously hesitant about or relatively unaware of the possible uses of technology saw the potential for clear benefits. Some judges, mediators, arbitrators, and court administrators observed that the online versions of litigation, mediation, and arbitration could be as good or even better than the in-person versions. Some began to consider new ways to combine processes or to use them differently. Tech advocates saw this as one silver lining of the pandemic, noting that COVID-19 achieved a result that twenty years of tech advocacy could not.

As in-person interactions once again become possible, disputants, lawyers, courts, and neutrals will need to decide whether and under what circumstances to conduct interviews, depositions, court proceedings, negotiations, mediations, or arbitrations in-person, by phone, using videoconferencing, or in writing of some form. While many hail the potential benefits of using technology, others fear the loss of the human side of dispute resolution, expressing significant skepticism that technology can adequately replace the close contact, credibility assessment, rapport, and interpersonal connection they believe are critically important aspects of dispute resolution. Some tout the possibilities for using technology to facilitate access to justice, but others worry about the ways that technology might impede such access.

Psychological science provides a useful lens through which to consider these essential issues. Using different means of communication can influence how participants experience the interaction and these experiential differences have important implications for dispute resolution. These implications offer valuable lessons for legal actors choosing which modes of communication to use and determining how to communicate well within a particular medium. While it is natural to seek simple answers, the psychological research we explore is nuanced, revealing that no single mode of communication is “best” in all circumstances. In lieu of a simple solution we provide a multi-dimensional analysis that will help guide decision makers in making these critical determinations. Understanding the science will help participants maximize the benefits and minimize the drawbacks of different communication media, enabling them to make informed choices among media, design the chosen media to fit their goals, and adjust their advocacy, judging, negotiation, and other activities to the chosen medium.

In Section II, we draw on psychology to analyze four key characteristics of communication media: (1) the channels that they provide for communication, (2) the degree to which they facilitate synchronous or asynchronous communication; (3) the extent to which they provide transparency or privacy; and (4) their formality, familiarity, and accessibility. In Section III, we explore how these characteristics affect participants in dispute resolution. We focus on the impacts of alternative modes of communication in ten areas that are particularly relevant to dispute resolution: (1) focus and fatigue; (2) rapport; (3) emotion; (4) the exchange of information; (5) participant behavior; (6) credibility determinations; (7) persuasion; (8) judgment and decision making; (9) procedural justice; and (10) public views of justice.

In Section IV, we explore how decision makers might incorporate the insights of psychology into their technological choices. We identify three important variables for decision makers to consider: the goals the decision maker has for the process; the characteristics of the disputants; and the nature of the dispute or task. We explain why these variables are critically important and provide examples of how decision makers can draw on psychology to best fulfill their goals in designing and using technology for dispute resolution. In Section V, we briefly conclude and point to several areas in which additional research would be particularly useful.

Keywords: COVID-19, Psychology, Dispute Resolution, Technology