June 04, 2020 Practice Points

The Mediators Speak: What Has Surprised You Most About the Advent of Virtual Mediation?

Two mediators discuss the pros and cons of mediating online.

by Jeff Kichaven and Paul J. Van Osselaer

Jeff Kichaven:

Online mediation has taken on a life of its own.

It is a different organism than in-person mediation. It no longer makes sense to say it is better or worse. It needs to be evaluated on its own merits.

We’ve faced technological transitions before­—and benefitted each time. A phone call is different than an in-person conversation; a TV show is different than a radio show; a movie is different than a play. We cannot say the newer technologies are categorically better or worse than their predecessors. Each has its place, each its own virtues. So it is with online mediation.

For the foreseeable future, online mediation is mediation. In many cases, personal attendance requires air travel. That’s not easy now. And it’s hard to imagine mediating in person with masks, plexiglass shields between us, sitting socially distanced in the corners of conference rooms rather than at the table. Talk about a lack of intimacy. God forbid anyone should cough! We’d all race for the exits.

We must therefore consider online mediation a blessing. It’s what allows mediation to continue at all.

But here’s the critical point: We have the opportunity to shape this new organism of online mediation, even as we had the opportunity to shape in-person mediation 25 years ago.

Let’s not make the same mistakes twice.

In-person mediation started as a rich, complex, nuanced series of curated conversations between the sides designed to maximize self-determination and almost always resulted in settlement. The sides could take pride in those settlements, for they created them. But in-person mediation has largely devolved into a kind of arbitration without due process, where a high-status neutral reads briefs, decides where the case should settle and drives the sides toward that single-minded result, with the sides rarely if ever meeting face-to-face, or even participating much. Not much for the sides to create, not much in which they can take pride.

Why did we abandon self-determination, direct communication, complexity, and nuance? Because direct communication between the sides, in opening joint sessions and otherwise, was thought to engender too much antagonism and make it too hard to settle.

Can we steward online mediation in a different direction? Harness technology to keep the benefits of direct communication and limit its risks?

I am convinced we can.

Online mediation is different, just as making a phone call, watching TV, or seeing a movie was different from what went before. In online, as opposed to in-person, mediation, two critical differences are that people are at home, and they can turn their cameras off when they need to.

Skip the elevator ride. You’re at home. For clients, the elevator ride up to the mediator’s office might be one of the worst minute-long experiences of their lives. In that short time, their minds reactivate the awful circumstances which led them to litigation and this scary face-the-music moment of mediation. No wonder they’re so easily agitated once they sit at your conference table. No wonder lawyers seek to protect those clients from direct communications in joint sessions.

In online mediations, it’s all different. There’s no elevator ride. There’s no car ride or plane trip, either. All your client has to do it put on a clean shirt, comb his hair and sit down at the kitchen table, not your conference table. Your client can glimpse her spouse, roll her eyes at their kids, pet her dog. They’re home, in his or her own comfortable and familiar environments—not on neutral (or even hostile) turf. Clients may well be less subject to hair-trigger responses in these cozy surroundings. Lawyers may therefore be more willing to have them participate in some direct communication.

Also, I daresay your opposing counsel may be less inclined to inflammatory rhetoric when they’re not girded for battle in a law office, but rather are at home themselves, jeans and sneakers below the shirt and tie, spouse and kids within earshot, dog staring at them quizzically wondering what’s wrong.

If you can’t stand the heat, don’t get out of the kitchen: Just turn your camera off. Many lawyers are just itching to address the other side’s client directly. These lawyers think, “Just let them hear our side unvarnished, unfiltered by their own lawyers.” The lawyers on the listening side, though, are often cool to the idea. Bad experiences have taught them that their clients can become inflamed, setting the mediation back for hours or causing it to end altogether. In-person, not much can mitigate this. It would be too gauche for a client to turn their chair around so that the presenting lawyer cannot see the other client’s reactions. Even that might not be enough to quell a client’s outrage in a tense, in-person meeting.

In online mediations, this is all different, too. Your client, remember, is in the kitchen. Literally. This comfort zone is itself a buffer against outsized reactions. And, if things seem too hot, your client need not get out of the kitchen. They just need to turn off the camera. Then nobody can see their reaction, and the mediation is more likely to continue intact. These buffers, too, may allow more lawyers and their clients to participate in some direct communications.

Nobody knows how this will all work out. One thing that is for sure, though, is that mediation will never be the same.

The old mediation is dead! Long live the new mediation!

 

Paul Van Osselaer:

Good question! As with all surprises, there have been pleasant ones and troublesome ones. The good news is that pleasant surprises far outweigh troublesome ones and the troublesome areas are improving as lawyers and clients gain more experience with virtual mediations.

Despite my gray hair, I’ve always been comfortable with technology. I’ve had a webcam for years (admittedly not used often). And because most of my mediations are out of town, my national mediation practice relied heavily on the internet and the cloud. So from the beginning of my practice, for example, I’ve been focused on security, which serves me well as we’ve gone virtual. But I still viewed in-person mediation sessions as the only way to get things done. I was wrong.

Surprises derive from expectations. So my answer to the posed question would have been different earlier this year—because of my prejudices about what to expect. In-person mediations have advantages we all know by heart. But the more I mediated virtually these past few months, the more I saw advantages virtual sessions have in their own right and began to question whether my preference for in-person sessions was based in part on my comfort zone. With all these virtual mediations under my belt now and having conducted a large virtual international mediator conference last month, I discovered a new mediation comfort zone. It doesn’t replace the old one and the advantages of in-person mediations remain. But when virtual mediations are conducted skillfully (technologically, with the right platform, and with a mediator who is savvy to subtle adjustments needed to relate over video), we are all discovering that virtual mediations work very well.

Those observations form the basis for both my top pleasant surprises and top troublesome surprises about virtual mediation.

My top pleasant surprise is how quickly most lawyers, parties and courts adapted to virtual mediation. Although I expected (and received) some “let’s wait and see what happens” requests to move scheduled in-person mediations, most parties—perhaps out of their own or court-ordered necessity—simply converted the mediation to a virtual one and were pleasantly surprised. Like most mediators with whom I’ve spoken, I received post-mediation comments expressing that surprise as to how well it worked. I like to think my “Online Mediation Protocol” (posted on LinkedIn and my website) helped ease concerns, but the reality is that good lawyers are adaptable. And they’ve discovered that a virtual mediation is easier to schedule and assure the attendance of persons with authority because days of travel are no longer involved. As for courts, it is a pleasant surprise to see courts readily accept virtual mediations as compliant with their usual language relating to “attendance” by a person with authority. And at least one court (the Central District of California, as posted on its website) gave authority to mediators under the court’s ADR Program to excuse in-person attendance and conduct the mediation by video conference. Finally, lawyers, parties and courts are increasingly comfortable with the security issues that some parties raise. All experienced mediators in this virtual realm are well versed on the latest security issues and fixes. I’m upfront with those issues to address any concerns.

But all is not rosy. I have two top troublesome surprises. First, there are still some attorneys and parties who are resistant to technological change. Most of that is lack of comfort or experience, like the lawyer who told me “I don’t do I.T.” when I mentioned how to connect. But like those who in decades past resisted online research, or even having a computer on their desk, that will change—or they will be left behind. Client representatives, on the other hand, seem far more adaptable and familiar with technology.

Second, and perhaps most troubling as a mediator, is that some parties and attorneys don’t seem to appreciate that the art of communication and the art of negotiation hasn’t changed.

  • Communication is visual as well as verbal. While mediators may have webcams, targeted lighting and cardioid microphones, no one expects all attorneys or parties to have the same from their homes during a lockdown. But I was a bit surprised that some attorneys don’t seem to check how they look on video, with cameras aimed at a scalp or a nostril, or lighting from behind to create a horror movie look. Most mediators are very willing in the pre-mediation calls (now usually by Zoom) to address these issues and make suggestions if asked. Then there is the issue that I too, admittedly, had difficulty with initially: remembering that you need to speak and listen to the camera, not the video display. Eye contact, now through the camera, is always important when speaking and when listening. There are some tricks I gladly share to improve the ability to do that naturally.
  • Negotiation takes time and is more than trading offers and demands. We all know that intellectually. Yet it surprised me that a few treat virtual mediations more like a conference call. Impatience can exist sometimes in all mediations, but perhaps because in-person mediations seem more dedicated to the task in conference room settings, it seems more frequent online. There are things a mediator can do in a virtual setting to cut down on any such impatience though, such as more frequently letting all rooms know of the status of things. If a mediator is to help parties recognize a need to reevaluate initial positions, that can take time in any setting.

In the end, the pleasant surprises far outweigh the troublesome ones, which will diminish over time. However dispute resolution changes after the pandemic, both in-person and virtual mediations will have a place in dispute resolution. We are now finding a new comfort zone. I knew I had found mine when I told one virtual breakout room I was going to “run down the hall” to another party’s room. When in-person mediations regain a role in ADR, will I say “I’m clicking out?”

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