Online Mediation - A Primer

Online Mediation - A Primer

Online Mediation - A Primer

COVID-19 has put a number of dispute resolution mechanisms on hold. But disputes have continued unabated. Alternative dispute resolution (ADR) tools, like mediation, are effective options to resolve conflicts and are flourishing online despite a long-held assumption that they could only be done in-person. While the core principles of mediation remain the same, whether online or in-person, best practices have emerged to adapt to this new paradigm. Contingency planning for bad connectivity, setting ground rules for communication, and guidelines for ‘Zoom fatigue’ are a few ways mediation can be conducted more effectively when online. And online mediation is likely to continue, even once this crisis is behind us.

By Ehsan Ali and Alnoor Maherali

COVID-19 caused a surge in commercial and interpersonal conflict.  At the same time, courts are closed, halting society’s traditional route of dispute resolution.  In these times, mediation has become increasingly important as a method by which people can solve their disagreements in these trying times.  But mediators are not immune to the virus, and they too were forced to adapt. Because of this, many mediations are now done online. Though there was initial reluctance and discomfort, it turns out that mediations conducted virtually are not so different from those performed in-person.  But there are special considerations that smart mediators have learned to take into account in this new reality, which can be managed with proper planning and better awareness.    

Contingency Planning - Managing Issues with Hardware and/or Software

Technical issues such as difficulty connecting, issues with the camera, the microphone or something else entirely can stop a mediation before it even starts. And most people who have done a video conference have experienced at least some of these issues.  As such, mediators are finding it helpful for parties to test out their devices prior to the session to avoid these problems. 

But even with proper planning, technical issues can still arise in the mediation. Therefore, a best practice on the part of the mediator is to establish a plan B and plan C, in case anything goes wrong.  For example, in the event that a party is unable to establish a video connection via Zoom, the mediator can (a) share their personal number so that the party can let them know of the issue and then (b) pivot to a telephone call to conduct the session.  Or they can change video conferencing applications.  The important feature is for the parties to know ahead of time there are alternatives in the event of an error, and thus be able to focus on their dispute.

Addressing Internet Connectivity

Even when parties can connect, internet lag can still plague a session.  One party may have difficulty being heard or hearing the other party and/or the mediator - their voices lost to a distorted echo caused by latency in the network connection. The best solution to this is preparation – the mediator should flag this issue as a potential problem so that if it does happen, it can be recognized and ameliorated.  A mediator can call for a break to allow the party experiencing the lag to get a more stable connection; or, if necessary, can pivot to the secondary mode of mediation.  What is important is recognition that all parties are doing their best.  And though the situation can be annoying, it is simply a feature of the time we are all living through.

Lag can be particularly frustrating when parties are speaking directly to each other.  In person, some mediators make it a practice to set a guideline for the parties not to interrupt each other.  This is even more useful in an online session where lag can make things worse.  When parties agree not to speak over one another, it makes the session more effective for everyone.  And because mediation can unearth difficult emotions – we recommend parties maintain some mechanism by which to take notes.  That way, they never lose the important point they want to bring up or the question they want to answer.  Mediators and parties can also agree to utilize hand signals to avoid audio-overlap; for example, a raised hand to show the party has something to say. 

Managing Distraction and Fatigue

Because parties are often in their homes with a greater array of potential distractions, keeping parties tuned-in to an online mediation session is generally more difficult than a mediation conducted in-person.  We recommend establishing ground rules such as turning off notifications on one’s device, putting one’s phone aside for the duration of the mediation (unless they are using their phone to access the session), and using headphones to block out other sounds. In the event a party must leave their computer to tend something, a best practice is for parties to pause the mediation until they return. 

In addition, the energy drain while in online video mediation seems to be significantly higher than for in-person sessions. “Zoom Fatigue” reduces the amount of time a person can spend on video conference before they are worn out – with the consequence of drastically reduced productivity after that point.  The best practice for dealing with this is structuring the session accordingly.  Online sessions are best kept shorter than in-person mediations.  Between 1 and 1.5 hours appears to be the ideal length.  If the parties have a limited span of time in which to find a resolution, sessions can be scheduled at a greater frequency.  And it can be helpful to check-in with the parties more frequently and to schedule regular breaks and off-screen time.   

Building Trust: Overcoming Interpersonal Disconnect

Mediators spend a great deal of energy during a session on working to build trust between the parties.  When the rancor that often accompanies conflict has prevented the parties from seeing potential solutions – a big part of the mediator’s value is knitting the parties together by uncovering the connections and commonalities between them. 

A great deal of academic work confirms what many of us know from personal experience – that discussions over the internet often lack the tenor of a discussion between two people.  All too often, the online medium in itself does not decrease (and does enhance) the animosity between disputing parties.  This means that an effective mediator will need to spend more time on building trust and establishing rapport during the session.  Indeed, this may have a greater impact than any other specific skill mediators bring to the table in their online mediations and negotiations.  This means that the mediator may take a less direct path through discussing the issues in the mediation in order to establish a productive working relationship between the parties. Parties that recognize this are likely to reach better, more sustainable outcomes from their mediations.

Maintaining Confidentiality

Confidentiality is a core value to mediation. While it has long been featured in every mediator’s opening statement, online mediation makes it very important to be specific on what this means in this new context.  It is a best practice to ensure: (a) that the parties are not recording the process without unanimous consent; (b) that no unknown parties are covertly surveilling or instructing the mediation session; and (c) that everyone knows that notes taken during the session should be destroyed.  Good online mediators make sure the parties know this at the top of the session. 

Online mediations are likely to grow in number and scope given safety guidelines, personal comfort, and the upswell of conflict given everything that is happening.  Mediators are now more important than they have ever been in encouraging empathy, highlighting commonalities, and helping find workable solutions.  With a few adjustments, online mediation can proceed in much the same fashion as an in-person mediation.  However, mediators and parties should acknowledge that there will be some additional technical considerations; and remember that everyone is doing their best to work out the situation in real time.  If mediators engage in a bit more process-leadership and are transparent about the potential challenges, online mediation can provide a more accessible route to resolving conflicts speedily, safely and effectively.  That’s worth a little more screen time.

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