Članek je bil objavljen v zborniku 23rd International Scientific Conference "Law Days – Prof. Slavko Carić, PhD" in Novi Sad.

 

 

Abstract: The rapid digitalisation of the dispute resolution process has fundamentally changed the family mediation landscape, both in terms of opportunities and legal issues that remain to be fully explored. This paper examines the consequences of online family mediation for the protection of vulnerable parties, especially children and structurally weaker populations. The existing legal framework and relevant international instruments are examined through a qualitative doctrinal and comparative-analytical approach focused on EU law. The analysis shows that several aspects need to be further developed in relation to the regulation of ODR platforms for family mediation, including a lack of harmonised minimum procedural standards that exist at the EU level for family mediation via ODR platforms, the absence of safeguarding measures in place for vulnerable participants, and a lack of balance between confidentiality and data protection requirements. Furthermore, the paper demonstrates that the existing EU legal framework does not adequately regulate digital family mediation. Rather than reflecting an implementation problem, the analysis reveals a significant regulatory gap concerning online family mediation, particularly regarding procedural safeguards, vulnerable parties, and cross-border digital proceedings.

The findings contribute to the growing literature on digital family justice and support the development of a harmonised European legal framework for online family mediation.

Keywords: digital family mediation, online dispute resolution, vulnerable parties, child protection, GDPR

INTRODUCTION

The integration of digital technologies into legal processes has accelerated significantly over the past decade. Notably, the digitalisation of civil justice and alternative dispute resolution (ADR) has become more evident over the past decade, particularly in family mediation, which has increasingly gone virtual following the COVID-19 pandemic (Cebola & Monteiro, 2024; Katare & Rajvanshi, 2024). This development has raised major, genuine concerns regarding the safeguarding measures in place, the existing legislation, and the protection of vulnerable persons involved in family conflicts (Cebola & Monteiro, 2024). The vulnerable parties include those in emotional distress, those who are in unequal power relations or who are victims of domestic violence, and those with impaired decision-making capacity (Cortés, 2010). It also entails children whose interests are central but are often inadequately represented structurally (Cortés, 2010). Decisionmakers transfer these dynamics to the digital world, and new risks arise that existing policies are not suited to address (Cebola & Monteiro, 2024). Thus, this paper assumes that digital family mediation is neither intrinsically good nor bad, but rather relies on a legal and institutional framework within which it is embedded. It aims to understand the implications for fairness, protection, and access to justice in the context of digital family mediation, focusing on the following research questions:

1. How much do the current legal frameworks of EU law, including relevant international instruments, protect the vulnerable parties, especially children, in online family mediation?
2. What are the key legal and ethical issues arising from the digital world and affecting family mediation?
3. What regulatory measures need to be put in place to ensure that the shift to digital formats will not impair the procedural and substantive guarantees that less resilient parties enjoy?

Theoretical Frameworks

This paper is based on two theoretical frameworks. The first is the access to justice theory, which prioritises meaningful and fair access to dispute resolution rather than merely a physical gateway to the courts (Cappelletti, Garth & Trocker, 1982). Therefore, mediations should be judged on their ability to protect informed consent, transparency, the weaker parties (who are excluded from the mediation process), and digitalisation (whether it provides better access or creates digital exclusion and low legal literacy). The second framework is the fourth-party theory, which views technology as an active part of online dispute resolution, as it influences communication and interaction (Katsh, Katsh & Rifkin, 2001). Power dynamics, especially for vulnerable users, can be enhanced or reduced through the design of online platforms for family mediation. These theoretical frameworks lay the foundation for understanding how digitalisation enhances access to justice, especially for vulnerable parties.

Methodology

The chosen methodology for this paper is a qualitative, doctrinal approach, based on a normative analysis of EU legislation and the Council of Europe’s standards and international instruments on family justice and dispute resolution. According to Majeed, Hilal & Khan (2023), it is a lawbased research approach in which statutes are described, interpreted, and clarified through systematic analysis of provisions, case law, and legal principles. The paper examines legislation, policy documents, case law, and soft law relating to civil justice cooperation, procedural rights, and child protection in cross-border and domestic family disputes, with a particular emphasis on the functioning of legal safeguards in mediation. Lastly, a limited comparative element is employed through the examination of the Portuguese approach to online family mediation in order to illustrate the practical implementation of digital dispute resolution mechanisms and identify potential regulatory gaps concerning safeguards, mediator accreditation, and the use of digital tools. This framework is supported by a socio-legal perspective, which takes into account power dynamics, vulnerability, and relational factors, particularly in situations involving domestic abuse or coercive control. Accordingly, the qualitative doctrinal analysis is complemented by selected practical examples that assist in assessing the extent to which digitalisation in family mediation can effectively protect vulnerable participants, including children.

The Development of Online Dispute Resolution (ODR) Origins and Evolution of ODR

ODR has evolved over the years to become a central part of the legal process. The first important system of ODR was the Virtual Magistrate project at Villanova University, a pioneering voluntary online arbitration initiative to settle disputes between ISPs and users regarding defamation, fraud, IP rights, or misuse of commercial information, which began in 1995 (Cortés, 2010). It issued just one significant ruling, as highlighted in the Tierney v. Email case, which forced America Online (AOL) to pull an ad offering bulk access to email addresses. The project, however, received little involvement from major providers, had communication that was neither robust nor secure, lacked enforceable outcomes, and failed to consider commercial disputes (Cortés, 2010). At the same time, new programs were created, such as the Online Ombudsman Office (1996), CyberTribunal (a mediation and arbitration initiative), and eResolution (Cortés, 2010). These developments mark the beginning of digitalised ODR, a move from a hobbyist period before 1995 to an experimental, entrepreneurial, and eventually institutional stage, beginning in 2002, when formal justice systems began using the virtual alternative to solve cases and bolster inclusivity.

Advantages and Disadvantages of ODR in Resolving Conflicts

The table below summarises its key advantages and disadvantages, as highlighted by Cortés (2010).

Table 1: Advantages and Disadvantages of ODR

Advantages	Disadvantages
Faster resolution without dependence on court scheduling	Loss of non-verbal communication reduces clarity
Flexible participation and improved preparation time	Higher risk of misunderstanding in written exchanges
Lower costs due to reduced travel and logistics	Digital divide and unequal access to technology
Effective for cross-border and low-value disputes	Language and platform accessibility barriers
Greater party autonomy and improved satisfaction	Uncertainty in enforcement and lack of harmonised standards
Access to specialised neutral expertise	Reliance on consent limits compulsory use
Suited to digital-first dispute resolution systems	Reduced transparency due to private and confidential platforms

Source: Author's compilation based on Cortés (2010)

Findings: Normative and Comparative Legal Analysis of European Union Legal Sources and Standards EU Mediation Directive 2008/52/EC

Scope

The EU Mediation Directive 2008/52/EC set a critical legal precedent in Europe for resolving cross-jurisdictional issues. This Directive applies to civil and commercial cross-border disputes in the EU (excluding Denmark) (European Union, 2008). It does not cover administrative, customs, or public authority cases. Instead, it offers a broad framework, and Member States are afforded considerable flexibility in the organization and implementation of mediation, including its procedure, the accreditation of mediators, and the institutional organisation (European Union, 2008). Hence, while the directive lays the foundation to address cross-border legal issues through mediation, its efficacy largely depends on how each member state acts prudently to address emerging issues within its legal system.

Principles

The Directive is built on three core principles.

1. Confidentiality protects mediation communications from disclosure, fostering trust and encouraging open negotiation.
2. Enforceability ensures that written settlement agreements can, upon request, be made binding and legally effective.
3. Procedural autonomy allows Member States to design their national mediation systems while still complying with minimum EU-wide standards.

Digital Limitations

The Directive only addresses face-to-face mediation, and does not mention any digital dispute resolution settings. It fails to reflect the possibility of breaches of confidentiality related to cloud storage, transcription, and data access on the platforms, as well as the enforceability of electronic signatures and consents (Cebola & Monteiro, 2024; Cortés, 2010). This deficiency leads to uncertainty in cross-border recognition of digital settlements due to differences in systems across countries and the lack of coverage for online mediation systems. Thus, it would be prudent to amend the framework to standardise digital mediation.

Brussels IIb Regulation (EU) 2019/1111

Scope

This Regulation should apply to divorce and related matters, including custody, access, and parental responsibility in EU matrimonial matters, as well as to their recognition and enforcement. Concisely, it applies to matters relating to the jurisdiction, recognition, and enforcement in EU matrimonial law, as well as to parental responsibility and access (European Union, 2019). The statute is in force across all Member States and provides a harmonised framework for the cross-border enforcement of judgments, authentic instruments, and certain agreements (European Union, 2019). Overall, it does not regulate mediation, but does apply where mediated family agreements are made binding or enforceable under the law of a state and then sought to be recognised or enforced in another country.

Principles

The regulation is based on mutual recognition, which means that, in principle, decisions from one Member State are accepted in another on very few grounds. It is also informed by a primary principle of all matters relating to parental responsibility – the best interests of the child (European Union, 2019). It also relies on trust amongst the Member States, provides limited substantive control over foreign judgments, and enhances judicial cooperation in the EU. Hence, the binding nature of the law ensures uniform application.

Limitations

Nonetheless, in the virtual context of modern-day systems, the law is insufficient. Notably, online dispute resolution, electronic mediation agreements, or remote authentication and platform-based consent are not mentioned in the Regulation (Cebola & Monteiro, 2024; Cortés, 2010). This lack of guidance results in divergent practices across countries, uncertainty about the law governing mediation in cross-border digital cases, and weaker protection for vulnerable parties. Consequently, it erodes reliability, transparency, and enforceability.

General Data Protection Regulation (EU) 2016/679

Scope

The European Union (EU) personal data protection legislation is mainly represented by GDPR (EU) 2016/679. This provision applies to all Member States and to the processing of personal data by public and private bodies, regardless of how it is collected, analysed, stored, or transferred (European Union, 2016). This provision is particularly critical in digital family mediation, as the dispute-resolution techniques in the digital sphere may involve sensitive data related to family relationships, children, economic matters, and health concerns. It may also be subject to multiple jurisdictions. Thus, the law is instrumental in virtual family mediation to ensure privacy, which is a fundamental human right.

Principles

The Regulation is organised around the key principles outlined in Article 5. Processing shall be lawful under Article 6, and there are further specific guarantees and circumstances regarding the processing of special category data under Article 9 of the Regulation (EU) 2016/679, 2016.

1. Lawfulness
2. Fairness,
3. Transparency in data processing
4. Purpose limitation
5. Data minimisation
6. Accuracy
7. Storage limitation
8. Integrity
9. Confidentiality 10. Accountability.

Limitations

The structural and operational deficiencies in the online mediation process undermine the law’s efficacy. Notably, the main problems of digital mediation are determining who is responsible for which resolution aspects between mediators, organisations, and technology providers, such as controllers and processors (Weigl, Barbereau, Sedlmeir & Zavolokina, 2023). Furthermore, mediation technologies such as cloud platforms, video conferencing, or artificial intelligence tools are not directly covered by the GDPR, which also does not include any specific rules on confidentiality in online environments or on the inclusion of children in mediations. Thus, the uncertainty in these platforms blurs responsibility and accountability, thereby hindering privacy.

Discussion and Interpretation

Legal and Ethical Risks in Online Family Mediation

The power imbalance in family virtual mediation stems from several organisational, personal, and structural issues. They mainly include economic inequality, psychological dominance, coercive control, and unequal access to legal and digital resources (Chitashvili, 2025). The distinctions will not disappear during online mediation and may be more challenging to detect. A lack of nonverbal cues makes the mediator less likely to detect feelings of intimidation, distress, or manipulation, and potential differences in digital literacy and internet access could give one party an edge. Therefore, there may be safety worries concerning parties to private spaces (surveillance, amount of communication, interference from others) regarding remote participation, particularly in situations of abuse.

Some severe cases may also undermine the willingness of vulnerable parties to share material information remotely to punish the perpetrator lawfully. Precisely, domestic abuse is a more significant issue since it is likely to be directly impacting the victims’ voluntariness and informed consent (Bettinson & Wake, 2023). Coercion, which may be hidden throughout the conflict-resolution process for intimidated victims, can occur during and outside mediated sessions (Chitashvili, 2025). This outcome is prevalent in cases where an abusive person has access to private space and/or devices of the victim (Chitashvili, 2025). This setting yields mediated “deals” out of pressure on the vulnerable individuals and not for the ultimate good of the vulnerable population, including children, women, and alienated groups like the LGBTQI+ community. In addition, limited knowledge of digital platforms, cost barriers, and digital exclusion further weaken the victims’ voluntariness (Cortés, 2010). These risks are acknowledged in EU laws, but the protection for mediation is still relatively limited, and the legal safeguards are, as before, scattered across national systems due to their sovereignty.

The legal protection of victims of domestic violence should also be interpreted in light of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), which entered into force for the European Union on 1 October 2023. Article 48 of the Istanbul Convention requires States Parties to prohibit mandatory mediation and other mandatory alternative dispute resolution processes in cases involving violence covered by the Convention. This provision highlights the need for effective screening mechanisms and procedural safeguards whenever domestic violence is present. Although voluntary family mediation may remain possible in carefully assessed situations, this provision highlights the need for rigorous screening mechanisms and safeguards whenever domestic violence is present. Consequently, any future European framework governing online family mediation should fully reflect the standards established by the Istanbul Convention.

Protection of Children and Vulnerable Persons in Digital Environments

The vulnerability of family mediation is a fluid, relational phenomenon, dependent on context and the design of the process rather than on legal status. These vulnerabilities need to be continuously assessed, considering the evolving, dynamic deficiencies: dependency of children, domestic violence creating conditions of coercion and lack of autonomy, cognitive or psychosocial disabilities, difficulty in understanding, traumatic experiences or mental health conditions that result in a loss of decision-making capacity, economic, linguistic or cultural barriers that limit meaningful participation (Cebola & Monteiro, 2024; Cortés, 2010). Potential vulnerabilities are not caused by digital mediation, but the way they manifest changes, making them less visible and more difficult to identify. Therefore, it is critical and urgent to institute and implement effective safeguarding frameworks along the way.

The best interest of the child is the key normative principle in childrelated conflicts, as provided in Article 3(1) of the UN Convention on the Rights of the Child and Regulation (EU) 2019/1111. In this scenario, the application of online mediation is unequal, sometimes offering less context, leading to minimal evaluation of family dynamics and the prevailing interests of adults. The UN Convention on the Rights of the Child guarantees the child's right to be heard (Article 12) (United Nations, 1989). Despite this, digital experience adds to the tension between participation and protection, where video participation may lead to a loss of confidentiality and rapport, and indirect communication may cause misunderstandings about what the child is thinking. Likewise, in online settings, there is limited visibility into behavioral clues that make safeguarding measures, such as screening, risk assessment, and monitoring, ineffective. This lack of targeted protection measures in EU law for digital mediation, which would enable age-sensitive and disability inclusive safeguard measures to be put in place, remains.

The importance of meaningful child participation has also been emphasised in the case law of the European Court of Human Rights. In M. and M. v. Croatia (Application No. 10161/13, Judgment of 3 September 2015)^[1], the Court held that domestic authorities must ensure that children are given a genuine opportunity to express their views in proceedings affecting them. This principle is equally relevant in online family mediation, where technological limitations may hinder the effective participation of children and the assessment of their best interests.

A useful example can be found in Portugal, where the digitalisation of mediation services has developed within a broader framework of digital justice reforms. As noted by Cebola and Monteiro (2024), Portuguese practice increasingly incorporates online mediation mechanisms while maintaining procedural safeguards concerning party identification, confidentiality, and access to justice. Although Portugal has not established a fully autonomous legal framework for online family mediation, its experience demonstrates a gradual institutional adaptation to digital dispute resolution and may provide useful insights for future EU harmonisation efforts.

Confidentiality and Privacy Concerns in Digital Mediation

A fundamental aspect of mediation is confidentiality, which allows for free and open communication without using the outcome of the proceeding in subsequent litigation. As Bichia (2023) emphasises, confidentiality constitutes one of the core ethical foundations of mediation, fostering trust between participants and encouraging candid communication throughout the process. EU law generally protects mediation, notably in the form of resolution communication, which cannot be disclosed, except in limited circumstances for public policy and child protection purposes under Article 7 of Directive 2008/52/EC (European Union, 2008). However, there are differences in how the implementation is applied, and in the interplay between various legal systems in cross-border family law cases. Digital mediation also poses privacy challenges, as online platforms automatically record, store, and process communications, violating privacy expectations (Cortés, 2010). Another risk factor lies in the strength of the data protection in digital spaces, which is subject to cyber threats (Cortés, 2010). Under the GDPR, while mediation platforms should have proper safeguards in place, it does not set minimum security standards for them across the EU (European Union, 2016). Confidentiality also extends to accidental data involving children or third parties, as well as to cross-border processing and storage, which increase risks to children’s sensitive information. Hence, it is evident that the current protection measures remain incomplete and fragmented, which is a serious concern.

Conclusion and Recommendations Summary of Findings

This paper examined the problems of digitalisation in family mediation from the viewpoint of vulnerable parties (children, people with disabilities, and victims of domestic abuse) who are in unequal settings or situations. The analysis of EU instruments (GDPR and confidentiality rules) and ODR reveals a mismatch in the EU mediation landscape, a system disrupted by divergent digital practices. The Mediation Directive 2008/52/EC is not tailored to online settings and contains many loopholes that perpetrators can exploit to suppress the needs and welfare of vulnerable parties. The protection of vulnerable parties is not guaranteed and is dependent on the mediators’ and the national law’s discretion, which can result in imbalance, abuse, exclusion, and limited participation. Another restriction on confidentiality is platform processing and data flows. Therefore, there is an urgent need for a harmonised EU reform. Furthermore, the application of the GDPR to online family mediation remains fragmented and insufficiently clarified, thereby impeding access to justice.

The original contribution of this paper lies in identifying the specific regulatory gaps affecting vulnerable participants in online family mediation and in proposing a set of minimum procedural safeguards capable of supporting future European harmonisation efforts.

Policy and Legislative Recommendations

EU level framework (Institutions and legislature)

1. Modernise Directive 2008/52/EC to create an EU framework for

digital family mediation.

1. Establish EU-wide standards for platform security, confidentiality,

and hybrid mediation delivery.

1. Introduce harmonised rules for domestic abuse risk screening and

child safeguarding in online mediation.

1. Provide EU rules for the recognition and enforcement of digitally concluded mediation agreements.
2. Issue guidance under Brussels II b Regulation (EU) 2019/1111 for cross-border online family mediation involving children and vulnerability risks.
3. Require mandatory screening for domestic violence in accordance with Article 48 of the Istanbul Convention before initiating online family mediation.

Data protection governance (EDPB)

1. Clarify GDPR application in mediation, including lawful bases and

processing of special category data.

1. Set standards for Data Protection Impact Assessments in online

mediation contexts.

1. Ensure data subject rights are compatible with mediation confidentiality and process integrity.

Member States

1. Transpose EU standards into enforceable national frameworks for

digital mediation

1. Regulate confidentiality, oversight, and accreditation of online

mediation providers.

1. Implement mandatory domestic abuse screening and child participation safeguards.

Professional regulation (Bodies and organisations)

1. Establish mandatory competence standards for online mediation

practice (digital literacy, safeguarding, GDPR awareness)

1. Implement internal procedures for handling safeguarding concerns, abuse risks, and technical failures

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[1] M. and M. v. Croatia, Application No. 10161/13, European Court of Human Rights, Judgment of 3 September 2015.