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Marta Poblet; Pompeu Casanovas, Emotions in ODR, 21
Int'l Rev. L. Computers & Tech. 145 (2007)
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INTERNATIONAL REVIEW OF LAW COMPUTERS F)Routledge
& TECHNOLOGY, VOLUME 21, No. 2, PAGES 145-155, JULY 2007 m\ & G.
Emotions in ODR
MARTA POBLET AND POMPEU CASANOVAS
ABSTRACT For years, the emotions of individuals involved in the areas of
negotiation and conflict resolution have been widely researched. Standard
methods of negotiation have dealt with the individuals' arousal and
expression of a vast array of emotional states. If we consider ODR as a
communicative process involving a group of individuals engaged in an
interactive decision-making task, we will need to admit that emotions are an
essential component in any online disputing process. This paper proposes a
review of recent literature on emotions and ODR to discuss controversial
issues such as the capacity of ODR techniques to deal with emotions and the
advantages and disadvantages of computer-mediated communication versus
face-to-face communication in terms of expressionsof emotions.
Introduction
Research and theory about emotion has burgeoned in social and cognitive psychology,
sociology, anthropology, economics, and neural sciences since the mid 1980s.' In the
fields of decision-making and rationality, the integration of emotions in the models
that predict human behavior paves the way to a new micro-foundation for the social
sciences. 2
As regards interactive decision-making, an extended research agenda has
already been developed focusing on the interpersonal effects of emotions on negotiation
processes. In this regard, there are many reasons to integrate the study of emotions within
the conflict resolution, negotiation and, more recently, ODR research fields. First, negotiation
and conflict resolution processes are social events necessarily involving interpersonal
relations, and emotions may be considered as the 'principal currency' of those
relations. 3
In Ekman's words, 'emotions are brought into play most often by the
actions of others, and, once aroused, emotions influence the course of interpersonal
Correspondence:Marta Poblet, ICREA Researcher at the Institute of Law and Technology,
Autonomous University of Barcelona (IDT-UAB), Barcelona, Spain. E-mail: marta.poblet@
uab.cat; Pompeu Casanovas, Institute of Law and Technology, Autonomous University of
Barcelona (IDT-UAB), Barcelona,Spain. E-mail: pompeu.casanovas@uab.cat
ISSN 1360-0869 print/ISSN 1364-6885 online/07/020145-11 ( 2007 Taylor & Francis
DOI: 10.1080/13600860701492146
MartaPobletand Pompeu Casanovas
transactions'.4
Second, the study of emotions can contribute to one of the most perennial
and challenging issues that researchers on negotiation and decision-making, no matter
their background, are face with: 'to fill the gap between fixed action patterns and impeccable
rationality'.s It is well known that, for most approaches, the basic function of emotions is to
mediate between individuals and their contexts.6
In this view, emotions consist of flexible
and adaptive responses that, while multifaceted, can be identified as specific behavioral
components that may provide key elements in explaining and even predicting the
outcome of negotiation processes. Finally, there is another practical reason to integrate
emotions in the negotiation, conflict resolution and ODR agenda. Since interactive decision
processes are often shaped by time-pressure, uncertainty, disruptions, changing conditions,
attention paid to emotional issues may anticipate possible obstacles to conflict resolution
and, as Lund has suggested, may also prevent mediator stress and burnout.7
Despite this significant amount of research, literature on emotions and the most
common forms of dispute resolution (negotiation, mediation, arbitration and litigation)
tend to focus primarily on traditional ADR techniques deployed in a face-to-face communication
basis (F2FC). In contrast, much less attention has been given to emotions
in computer-mediated-communication (CMC) and, more specifically, ODR.8
This paper proposes a review of recent literature relevant for the discussion about the
expression of emotions in ODR. We start by introducing the most important approaches
in emotions theory, and we continue by discussing the advantages and limits of ODR
techniques in dealing with emotions. We suggest that the most usual criticisms to ODR
methods can be counterweighed with recent research not so detrimental with the use of
computer-mediated-communication. Finally, we conclude by identifying promising
lines of research for the future of ODR.
What is an Emotion?
The complexity of emotions, together with the difficulties to distinguish 'emotions' from
'moods', 'temperaments', or 'affective styles' might explain the lack of consensus when
defining what an emotion is.9
Nevertheless, two basic orientations can be highlighted.
One is the universalistic approach that goes back to Darwin's research on emotional
expression and emphasizes the universal character of some basic human emotions,
such as fear, anger, happiness, sadness, or disgust.1 0
Within this broad paradigm, most
researchers see emotions as adaptive mechanisms organizing human behavior in ways
appropriate to environmental demands." In Levenson's words:1 2
The prototypical context for human emotions is those situations in which a multi-system
response must be organized quickly, where time is not available for the lengthy processes
of deliberation, reformulation, planning and rehearsal; where a fine degree of coordination
is required among systems as disparate as the muscles of the face and the
organs of the viscera; and where adaptive behaviors that normally reside near the
bottom of behavioral hierarchies must be instantaneously shifted to the top.
The second paradigm is normally referred as the 'social constructivist' approach,1 3
which
focuses on emotions as culture-bound artifacts. 1 4
Without denying the hypothesis of universal
basic human emotions, social constructivists aim at offering 'symbolic', 'interpretive'
or 'intentional' theories of emotions.1 5
Moreover, some of them have contested the
Western oriented character of concepts, expressions and languages dealing with
146
Emotions in ODR
emotions, indicating that 'there are no emotional terms which can be matched neatly
across language and culture boundaries'.1 6
Beyond these basic differences, the vast majority of researchers would share-at least to
some degree-the hypothesis according to which emotions serve some kind of function.1 7
However, both the notion of 'function' itself and the scope of functional explanations
broadly differ. Thus, from an evolutionary perspective, the functions of emotions are
associated with 'recruiting physiological changes', 'action readiness', 'changing cognitive
activity' or 'facilitating phylogenetically adaptive responses'. 18
As the analysis focuses on
the 'social functions' of emotions, however, functional explanations are more diffuse:
These converging research traditions indicate that emotions serve social functions. The
view is that the consequences of emotions are best examined in light of the recurrent
problems in interpersonal and group relations, such as allocating resources fairly, honoring
personal contracts, or maintaining friendships (eg Averill, 1980; Eibl-Eibesfeldt,
1989; Ekman, 1992; Lutz & White, 1996). This involves a teleological stance that
assumes that emotions can be seen as having functions -not because they were
designed, but because they have been selected for on the basis of their adaptiveness,
both at the biologicallevel for their contributionto individualfitness, and at the cultural
level for their contribution to individual and group functioning. To say that
emotions resulted from biological and cultural evolution does not mean, however,
that they serve an actor well all or most the time they occur.1
A third approach to the functions of emotions seems closer to the mathematical use of the
notion. Thus, without abandoning an adaptive perspective, it suggests relations among
specific behaviors rather than teleological causes of them. From this perspective, researchers
have emphasized the communicative and relational character of emotions, focusing on
their role in signaling social behaviors. 2 0
In their account on basic emotions, JohnsonLaird
& Oatley-following a cognitive approach that goes back to Simon2 1
-refer to
them as 'signals' that 'have no prepositional content or syntactic structure' and fulfill a
'control function' rather than an 'informational one'. 2 2
This 'control function' consists
of redistributing cognitive resources and goals:
[Emotions] arise particularly when individuals have many concurrent goals, including
mutually incompatible ones, and their resources of time, ability, and processing power,
are too limited to make a fully rational choice. Moreover, social mammals often cannot
achieve their more valuable objectives alone, and so they need to interact with others.
Co-operation calls for mutual plans, but it is impossible to guarantee that copies of the
plan kept by each partner are identical. Competition calls for antagonistic plans, and it
is impossible to determine their outcome. The biological system of emotions offers a
solution to these problems, particularly those that arise from the limits of rational principles
to govern or to predict complex social interactions. Emotions enable social
species to co-ordinate their behavior, to respond to emergencies, to prioritize goals,
to prepare for appropriate actions, and to make progress toward goals. 2 3
The issue that may be raised at this point is whether the functional aspects of emotions are
preserved in ODR environments. Most research on ODR and emotions implicitly accepts
that ODR techniques (ranging from blind bidding to e-mediation supported by a human
mediator) allow participants to be flexible, to adapt their responses to a changing environment,
to prioritize their goals and even to properly identify emotions in the opposing
24
party. In this view, the beneficial functions of emotions find their place in ODR. But
147
MartaPobletand Pompeu Casanovas
there is also countervailing research supporting the view that ODR may be more successful
than traditional ADR in inhibiting or filtering out emotions, especially when using text based
techniques. 2 5
In that case, emotions are brought into play as involving negative functions (ie
signaling hostile behaviors, threatening the other party, inhibiting trust formation, etc) that
make resolution less likely. The ultimate question would be whether the expression of
emotions is always beneficial or not and, related to that, whether ODR techniques are
able to deal with the functional aspects of emotions at convenience. In our view, the
present stage of research both in the field of emotions and ODR makes it difficult to
provide something more than reductionist or simplistic answers. It is therefore necessary
to look at smaller and more manageable emotional components to assess the pros and
cons of ODR in dealing with emotions, as compared to traditional ADR.
Is ODR Emotionally Limited?
Since ODR services are currently offering different tools to participants, we propose
to distinguish them using the most usual categories in both research and practitioners
literature. Table 1 provides a basic classification of some ADR and ODR tools and
techniques, based on different modes of communication. Even though ADR and ODR
cannot be simply encapsulated in those main modes of communication (F2FC and
CMC, respectively) much comparisons between ADR and ODR deal with advantages
and disadvantages of the two modes of communication. The second distinction is to
be made between synchronous and asynchronous modes of communication. While synchronous
communication refers to real time interactions (individuals interact at the same
time in the same physical or virtual place) asynchronous communication does not occur
in the same unit of time and participants are involved in the process at different moments.
If we consider ODR as a communicative process involving individuals engaged in interactive
decision-making, we will need to admit that emotions are an essential component
of the individuals' attitudes towards the disputing process, regardless of the specific tool
used. Nevertheless, most concerns tend to concentrate on the drawbacks that computermediated-communication
and online processes present as compared to ADR face-to-face
sessions:
The most frequently heard concern about ODR has been that online processes and interactions
cannot match the richness of the face-to-face sessions that are at the heart of offline
Table 1. ADR and ODR tools and techniques, based on different modes of communication.
ADR Face-to-face ODR Computer-mediated
communication (F2FC) communication (CMC)
Synchronous Negotiation/mediation Instant messaging
communication session in a physical place
Chat
Video conference
VoicelP
Asynchronous Shuttle mediation E-mail
communication
Caucusing Posting
Online caucusing
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Emotions in ODR
mediation. Face-to-face sessions enable a mediator to regulate who says and hears what
simply by physically including or excluding parties from the room. In addition, the
mediator gets feedback from the parties both by hearing what is said and by seeing
how it is said. Other elements of the mediation process, such as building trust and maintaining
a non-hostile environment, are also assisted by behavioral interactions.2 6
First, skeptics of ODR question its efficacy in dealing with emotions since online communications,
when compared to face-to-face communication, are seen as impersonal,
lacking human interaction and unable to express non-verbal cues such as the variable
tone, pitch and volume of the participants. 2 7
Accordingly, these missing elements of
the interaction increase the risk of miscommunication, inhibiting the development of
positive interpersonal relations.2 8
Second, criticism of ODR as a proper environment for interpersonal relations casts
doubts on technical issues that may block the development of trust among parties, such
as inadequate confidentiality, security, identity or authenticity. 2 9
Another criticism that
affects trust building is related to the so called 'digital divide'. In this perspective, ODR
does not grant sufficient accessibility to those who are not knowledgeable with information
technologies and computers, since it requires a certain level of user sophistication.3
0
Therefore, it is likely that those who are in a disadvantageous position with
respect to technology will tend to withdraw from ODR services.
Third, it is also believed that the inner constraints of online communications will
necessarily circumscribe ODR to a limited range of disputes.31
Thus, ODR would be
an appropriate forum for commercial disputes in which the economic transaction
remains the main issue, such as consumers and insurances disputes, but the more
complex and multifaceted a dispute becomes, the less suited it is for ODR techniques.
Finally, some authors have also cautioned that disadvantages of online processes, as compared
to face-to-face communication, can lead to insufficient control of the mediator over the
negotiating parties,32 imprecise evaluation of the flexibility, strength, feelings or confidence
33 34
of the other party, escalation of negative emotion and, ultimately, negotiation impasse.
Do these different criticisms mean that online negotiations are unable to facilitate the
emotional atmosphere to craft successful agreements? Let us consider alternative research
in more detail.
Despite being generally accepted that ODR cannot replicate the setting of a face-to-face
interaction, recent findings may moderate some concerns about ODR as an impersonal
environment where emotions cannot be used as contextual or interactive cues. In this
regard, different studies show that participants in ODR processes do not necessarily feel
unwise in the expression of emotions. Rather, they are conveyed through different means.
Consider for example the following example by Raines, in which capital letters become
'online shouting':
I JUST WANT TO BE DONE WITH HER AND NEVER DEAL WITH HER AGAIN!
LET'S JUST STOP ALL THE HASSLE AND RETURN MY MONEY! MANY,
MANY THANKS!3 5
Van Kleef et al. have shown that in the course of computer-mediated negotiation
emotions such as anger, happiness, disappointment, will and regret have interpersonal
effects on negotiators. In this way, 'negotiators monitor the opponent's emotions, use
those emotions to estimate the opponent's limits, and modify their demands according
to the presumed location of those limits.3 6
Another empirical study by Hammond
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MartaPobletand Pompeu Casanovas
concludes that ODR 'allows disputants to be more thoughtful in their submissions, evaluate
their emotions and express them rationally, and engage at their own pace-at all the
time when they feel calmer and better able to focus on the issues'.3 7
Ben-Ze'ev has
recently coined the notion of 'detached attachment' to highlight that 'the relative anonymity
of cyberspace and the ability to only reveal matters we would like to reveal
provide an opportunity to guard privacy while increasing emotional closeness and
openness'.38
As regards technological impediments for ODR to build trust among parties or provide
incentives for cooperative behavior, Fehr and Gichter have found that in online situations
in which people will never meet again and have no incentives to cooperate, they develop
cooperative attitudes such as altruistic punishment. Altruistic punishment of defectors
implies that individuals punish other participants even in non-repeated situations,
although the punishment is costly for them and yields no material gain. For these
researchers, 'negative emotions towards defectors are the proximate mechanism behind
altruistic punishment'. In addition, the concerns about ODR deepening the digital
divide have also been contested by research showing that the ODR environment may
actually work better in disputes where there is a power imbalance.4 0
Concerning the range of disputes that ODR may cover, recent data show its expansion
out of the e-commerce domain. Successful ODR providers such as SquareTrade, which
has already handled over one and a half-million disputes and has become the world's
largest dispute resolution provider,4 1
now include disputes that arise in the off-line
world.4 2
Currently, there are online negotiation support systems being used in family
cases, enterprise bargaining and international disputes. 4 3
Apart from the fact that in
some cases, 'ODR could be the only feasible dispute resolution system available' 44
and
computer-mediated-communication is often the means by which people make first
contact with one another,4 5
the incorporation of new technologies with high penetration
in different world areas (ie mobile telephony or community radio) may facilitate the
development of ODR services beyond its e-commerce origins.
Finally, as regards insufficient control of the mediator over the parties, research has
shown that the asynchronous nature of many online applications may provide practitioners
with new tools, such as pre-communication reframing (where messages are previously
directed to the mediator, thus enabling him to coach the parties with respect to the
further framing of their communication and potentially prevent destructive statements
reaching the other party).4 6
In this line, Raines concludes that 'reframing is probably
easier in an online environment, since the mediator can take the time necessary to
compose an appropriate response to an inflammatory statement from a party. A poker
face is not required for ODR, as often is for traditional mediation'. 4 7
Even well-known
techniques of ODR, such as caucusing with negotiating parties, are given new potentialities
in ODR, since 'dispute resolution practitioners do not need to concern themselves
'48
with party reactions to the amount of time they spend separately with each party'.
Recent Findings and Current Applications
ODR and computer-mediated-communication in general have triggered further research
based on experiments and models that compare interactions of individuals and emotional
states in both face-to-face interaction and computer-mediated-communication. Experiments
also include testing the distinct features of synchronous versus asynchronous
150
Emotions in ODR
communication in virtual environments. Although this empirical research is developing
only very recently, some interesting findings can be highlighted.
First, as regards access to online environments, the environmental psychology
approach has also suggested that both information and emotions play a role in the
decisions of users to approach or avoid an environment. 4 9
Thus, environments with a
large amount of information are more likely to elicit unpleasant emotions, such as the
user feeling that he or she has lost control over interaction with the environment. The
emotion-approach hypothesis predicts that users will want to approach pleasant, stimulating,
and controllable virtual environments.5 0
In the area of e-commerce findings
suggest that information load and emotions influence virtual exploratory and shopping
decisions.5 1
Second, research indicates that the specific mode of communication has an effect on
emotions, but here results are contradictory. On the one hand, Pesendorfer and Koeszegi
state that, 'synchronous negotiation mode leads to less friendly, more affective and more
competitive negotiation behavior. Asynchronous communication mode leads to more
exchange of private and task-oriented information and to a more friendly communication
style. These results suggest that de-individuation and escalating effects might be caused by
communication mode rather than by the ability of the media to transmit social cues.' 52
On the other, empirical evidence from a study of 98 mediators concludes that synchronous
on-line communication (on-line chat) had a much higher rate of win-win solutions
compared to delayed communication via e-mail.5 3
Another study comparing e-mail communication
versus face-to-face communication also finds that the latter may contain more
positive emotional communication than e-mail communication, and 'using F2FC before
or after e-mail communication may lead to more accurate perception of the other'. 5 4
In a
similar vein, Nadler compared in an online negotiation simulation negotiators who were
allowed to engage in telephone 'small talk' and negotiators who were not: "'Small Talk"
negotiators were over four times as likely to reach an agreement as "No Small Talk"
negotiators. In the negotiation simulation involved in this experiment, a seemingly
trivial intervention-a preliminary, brief, and informal chat on the telephone-increased
the likelihood that the e-mail negotiations that followed would be characterized by
cooperation, information exchange, reciprocity, liking, trust and ultimately, agreement.
These negotiators had the opportunity to establish common ground with the other negotiator
through small talk, even if the basis for common ground was exceedingly trivial.'5 5
Finally, it has also been stated that using both CMC and FTF for discussion enhances job
satisfaction more than using just one media.5 6
Third, recent prototypes try to empirically apply emotions in computer-mediated-communication.
For instance, Holzman and Pottenger use a linguistic model to tag chat conversation
with emotion tags and thus discriminate emotional from non-emotional
content.5 7
Tatai et al. have developed a multimodal Internet chatterbot system with an
emphasis on displaying and transmitting emotions between the chat partners. They
found that in its 24 emotions model, 'emotion icons such as terror, loathing, fear, rage
and grief were used by only 3 per cent of all chatters and made up only 1 per cent of
all emotions being used, whereas chatters reported missing certain composite emotions,
such as the "winky" state "; -) "'. Researchers concluded that 'chat requires a special
set of emotions that differs from emotions used in everyday life'.5
s Boucouvalas has
examined alternative non-video-based means to achieve expressive Internet communications.
His model applies tagging and parsing techniques to extract emotional states
from the content of typed-text sentences.5 9
Finally, Ohene-Djan et al. have developed
151
MartaPobletand Pompeu Casanovas
an information visualization interface that enables a user to input a real-time continuous
flow of their predominant emotion incorporating degrees of uncertainty relative to other
choices. Such a color spectrum provides an insight into when, how and with what degree
of certainty opinions were developed and changed over time.6 0
Ultimately, what these models have in common is the idea that emotions emerge in
online interactions following specific patterns that can be identified, retrieved and analyzed
with a variety of technologies. In this way, they all tend to preserve emotions as
'social functions', 'contextual cues' or 'indexes' in virtual environments. While ODR services
may certainly benefit from this specific research on emotions applied to specific
modes of communication, it is also necessary to be cautious about its results, since
further empirical studies, tests, and models are required to contrast the validity of them
in a more general level.
Conclusion
In this paper we have reviewed recent literature on the expression of emotions in ODR,
including the criticisms and advantages attributed to ODR as compared to off-line techniques.
It seems clear at this stage of research that emotions emerge in online environments
as properties of the interaction, shaping individual attitudes towards the
communicative and informational flow. Results obtained so far suggest that, contrary
to traditional views, ODR cannot be considered an inferior medium for the transmission
of emotions, as compared with offline ADR. Rather, emotions are expressed in a different
way as they emerge in off-line, face-to-face environments. In this line, ODR experts
suggest that online communication culture has developed its own paralinguistic cues to
express emotions (ie through special characters, emoticons, use of capital letters, etc).
Even though the particular display of emotions needs more empirical research in different
areas to be fully understood, the study of emotions may have a lot more to do with
online processes than has hitherto been supposed. As the number of technologies available
to ODR is expanding, we may anticipate the parallel development of a specific
culture of emotional expression. This also offers a promising land for research in ODR.
Notes and References
1 See, for example, B L Fredrikson 'The value of positive emotions' American ScientistVol 91,
pp 330-336, 2003; R Lane and L Nadel (eds) Cognitive Neuroscience of Emotion Oxford
University Press, New York, 2000; A L Hinton (ed) BioculturalApproaches to the Emotions
Cambridge University Press, Cambridge, UK, 1999; S Planalp Communicating Emotion:
Social, Moral, and Cultural Processes Cambridge University Press, New York, 1999;
P Ekman and R J Davidson (eds) The Nature of Emotion: FundamentalQuestions Oxford
University Press, New York, 1994; C Lutz and G M White 'The anthropology of emotions'
Annual Review of Anthropology Vol 15, pp 405-436, 1986.
2 C Castelfranchi F Giardini and F Marzo 'Relationships between rational decisions, human
motives, and emotions' Mind & Society Vol 5, pp 173-197, 2006; P Casanovas and
M Poblet 'Microfoundations of restorative justice', in M Bosnjak et al., Images ofRestorative
Justice,Frankfurt am Main, Polizei and Wissenschaft, pp 235-258, 2007.
3 R J Dolan 'Emotion, cognition, and behavior' Science Vol 298, pp 1191-1194, 2002; M L
K~isermann et al 'The study of emotional processes in communication: I. Measuring
152
Emotions in ODR
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4 Op cit, note 1.
5 P Johnson-Laird and K Oatley 'Basic emotions, rationality, and folk theory' Cognition and
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6 Op cit, note 5. See also K Oatley and P Johnson-Laird 'Towards a cognitive theory of emotion'
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7 M E Lund 'A focus on emotion in mediation training'Family & ConciliationCourts Review
Vol 38, No 1, pp 62-68, 2000.
8 For the purpose of this paper, we use ODR in a broad and flexible sense to encompass not only
disputes that originate from online transactions, but also off-line disputes handled online. Similarly,
the 'online' component may be extended to include the use of electronic applications such
as video-conferencing, mobile telephony, volP, etc.
9 R J Davidson 'On emotion, mood, and related affective constructs' in Ekman & Davidson, op
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10 C Darwin The Expressionof theEmotions in Man andAnimals John Murray, London, 1872; P
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18 Ekman and Davidson, op cit, note 1.
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23 Johnson-Laird and Oatley, op cit, note 5.
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155