Mediation in the Digital Realm
Credit: @dylanferreira
To be honest, before the pandemic I was planning to operate my practice roughly 85% online, utilizing the convenience of virtual meetings. In feeling the shift in technology approaching anyways, I began to practice self discipline and knew I could complete my job just as well from home as I could in an office. I preach efficiency a lot in my work, and in wake of the pandemic I coincidentally in a situation that made working from home a reality much faster than I expected.
I get asked a lot of questions about the effectiveness of video conferencing compared to in-person mediation. Having tried mediation in a number of forums, including educational settings, private settings, loud and crowded court hallways, or even phone and video conferencing - the most difficult hurdle for me in mediating with parties has been the inability to physically see them. In my role, I am often delivering information that may or may not be well received. When I can see parties’ facial expressions and body language, I can much more confidently assess when it’s time to change an approach, or ask a question before continuing, etc. For the above reasons, I think the only caveat in going remote is to really push for video conferencing at least for an initial call with the parties.
I would go so far as to say it can often be advantageous to do video conferences and not in-person sessions, as some people can be intimidated by confrontational situations. There has long been a belief that being in person is better, particularly in situations where the parties are family or have/had some sort of close relationship. While not necessarily untrue, there is a very real and difficult flip side to that. Pretty frequently, I can be met with dark topics in my work, and one of the most difficult issues is bad power dynamics. For example, sometimes it is not until you are in a room with parties that you realize there is or was a very unhealthy dynamic between them, where one person is very domineering and the other slightly more passive. In this situation, the more dominant person can be extremely gratified by the intimidating effect they have on the other party. So, putting these two people in a room together can often amplify gratification for one party, and amplify stress and anxiety in the other. This usually creates a difficult environment to successfully communicate and ultimately makes it difficult to make progress in mediation, despite the mediator’s best efforts to control the environment more positively. In video conferencing, a physical barrier is created between the parties that seems to alleviate many of these types of issues. One person is not getting railroaded emotionally, and the other, conversely, is not gratified and using it to their advantage.
There are additional benefits from the mediator’s perspective, too. Many video conferencing software programs contain features such as mute and breakout rooms. There are times in mediation where parties can become their own worst enemies. I do not mean this to be insulting, only that there can be moments when people are feeling insulted or upset, and can say things not at all beneficial to the process. In person, these moments can make things more challenging for the mediator, and can ultimately risk the possibility of resolution if it goes too far. In video conferencing, the mediator actually has more power with the tools at their disposal to keep better control over the mediation session than when meeting in-person. The use of breakout rooms is the virtual version of caucus (when parties individually meet in private with the mediator). When things have the potential to go in a negative direction, the mediator can mute everyone and take a moment with the parties individually to keep things on track.
Going digital has also helped my business from an efficiency standpoint. I’ve found that I am able to manage time better and take on more clients with the time saved avoiding travel and preparation. In addition, holding shorter video sessions, or a video session continued via phone and email has been more efficient and effective in getting parties to a resolution. In-person sessions can become long and parties can start to wear mentally. While some attorneys may not love the idea of mediations and hearings being held virtually for billing purposes, there can be hidden benefits in moving their practices online for them as well. See my blog on that topic here.
If you are seeking mediation, you’ll have to feel out what your comfort level is and consider how different mediators operate. Don’t be afraid to explore your options, however in my opinion, as long as there is video, the effectiveness of mediation really doesn’t change as a problem-solving tool!