I feel fortunate to have had some mediation work during the last eighteen months when I know many mediators have struggled to get any mediation work at all, and I wanted to take this opportunity to share some observations on online mediation to my friends and colleagues involved in mediation. In Keeping Control is the Key to Resolving Disputes by Agreement, my message to businesses in dispute was clear. I said "Mediation is often the last chance to keep control of your dispute. If you are involved in a dispute give it a go. Mediate if you can and mediate with your eyes wide open. This is your final chance to innovate and reach a solution on your terms. It is your final chance to avoid the expensive, time delayed binary decision-making process of the court. It is your final chance to keep control.” It is heartening that people are giving mediation a chance. At the moment I have three mediations scheduled and more in the pipeline. Since the first lockdown I have mediated a number of times online. I’ve used my phone (for voice calls and for Facetime), I’ve used Zoom and online video technology (I am yet to find anything that works as well as Zoom so simply). I have not personally done any three or more party cases using online mediation so these observations are focussed on traditional two party disputes. Use of the word ‘party’ includes participants in dispute and their legal representatives where applicable.
Where they have experience of mediation already, parties seem to prefer in person mediation. One of the main reasons for this is that the parties are more comfortable in a face to face environment rather than doing it online. I think this could be because parties themselves are not convinced that they give online mediation the same levels of concentration as they do when they are all together in the same venue. It seems easier for someone to pull out saying they need a video call rescheduled rather than at an in person mediation where schedules are set more strictly – and where once you are there you are there. For example, in one online mediation I had started a video call with the parties. When I was ready to have a private meeting with Party B they had disappeared. I had no message from them explaining why they had disappeared and I could not contact them at all. Half an hour later I received a telephone call. Party B explained that their connection was poor so they had to switch to the phone (curtailing any prospect of further joint meetings without a lot of extra hassle). To make matters worse Party B was driving (hands free call I was assured). I was immediately concerned that the case may not have had her full attention or been her first priority for the day. Where was she driving? Why had she not told me she was on the move during the time we had allotted for the mediation? Her concentration levels on the phone were certainly not at a high level and I quickly said we needed to hold off until she was no longer driving. Handsfree may be OK for some calls but how can you concentrate on a negotiation and drive safely at the same time? This would not happen in an in person mediation. I have never known it or heard of a party disappearing during the day and continuing the mediation via phone. When you have parties in person you tend to have them until the mediation is closed. Yes people have distractions, but they are physically there and have to some extent bought in to the process by turning up on the day. Another time on a video call there was a party who said their video camera did not work. It had worked when I had a pre mediation meeting with them but was not working when we were in joint session. This immediately put the other party on the back foot. They wanted to see the other party, not just hear them. They felt at a disadvantage because they could be seen and the other party couldn’t. As mediator it is also not ideal to be able to see one party but not the other. Again, in person this would not happen, it is not as if one party will appear behind a screen and not let themselves be seen by anyone on the day!
Mediator effectiveness Another huge factor in the effectiveness of online mediation is the effectiveness of the mediator him or herself. In my case, I feel when parties get me in an in person mediation they get a dynamism which is difficult to achieve online. I like to stand a lot and move around and use my arms to get points over. I think I can be more creative and help others to be more creative in person. I use humour a lot, when appropriate, but it seems much less appropriate online as it is more difficult to build rapport and a relationship in which humour can thrive. (I am referring to subtle situational humour, I am not available for stand-up comedy). For fans of shows like The Office (US) humour (or in that case, humor) is often just the way someone looks at someone else. A glance, a smile, a raise of the eyebrows. This is all difficult to achieve online. In an online environment with limited technical support it is difficult to do anything other than sit there – without a roaming camera you can’t really walk around, and being at home locations in the house to do that would be limited anyway. Platforms As I mentioned earlier, I have used my phone, Zoom and other video technology to conduct online mediation. I’ve run telephone based mediation for several years and it is nothing new. Unlike others I purposefully don’t do it in one hit though or have joint calls with the parties. This is because I have found telephone mediation to be less effective when there are multiple people trying to speak on a phone line. It is more difficult to manage – these people are often hostile to each other anyway, so it is always going to be harder to control emotions and stop people talking over one another on a phone call than it would be in person. A typical telephone mediation could run like this:
Monday – speak to Party A | Thursday – speak to Party B then to Party A again | Friday – speak to Party B | Tuesday – speak to both parties (separately) and close the mediation So by design telephone mediation is spread over several days (our rules allow for up to 21 days) but it has a very high success rate and parties are comfortable using it. When it comes to video calls Zoom is effective for online mediation, with the main concern being quality of connection. Especially now with most people working at home, you cannot assume that everyone has a good broadband connection. Some technology allows for a poorer quality video picture narrowing bandwidth so you can make sure you have video and sound 99% of the time. It is better to have a slightly grainy video than no video at all. Others have the edge on Zoom as they facilitate better non-verbal communication during the mediation – you can more easily send documents and manage a case. It’s also far easier to switch from room to room, it is all done from one page, so you never need to go through the convoluted process of leaving rooms and going back to the main room that you must do on Zoom. Online there are of course inevitably technical difficulties. In an in person mediation for example you could have Party A from a business based in Exeter made up of a team of an in house counsel and a director. At an in person mediation they are there all day together and participate in all the private sessions and the joint sessions with the other party. In an online mediation the in house counsel will be at home in Bristol and the director will be at home in Holsworthy. They are 134 miles apart and have different technical abilities and different broadband speeds. The in house counsel lives alone and has no distractions and the director has four children under school age and her husband is also trying to work at home during the pandemic. It is not the same as doing it in person! I have had cases where, using the above example, the director has had to drop out due to poor broadband signalling in their local area or because despite their best efforts there is just too much going on in the house and they cannot hear or concentrate properly. This is reality. Luckily on those occasions we have been able to continue with just one person present for that party, but there will come a time when this is not possible. Even continuing with one the other party might not believe the reason why the director is no longer there. Ask Roger I asked Hunt ADR Associate Mediator Roger Levitt if he had any thoughts on what makes online mediation a challenge and for Roger it boiled down to two main points: Surprise attendees Roger said that despite how many times beforehand you ask for a list of attendees, and you ask the participants not to pass on the invite to anyone else to attend without first checking with the mediator, you still get surprise attendees on the day. A solution is to wait until 5 minutes before the mediation to send out the invites, to use the waiting room (Zoom), and ask people to confirm there’s no one sitting in the room off camera. Finishing on time Traditionally a mediation will have a scheduled start and end time. It is flexible but it is there to provide some order for the day. The planned closing time also focusses the mind of the parties (and the mediator) that there is an end planned, so if a settlement is to be reached and they do not want to incur additional costs for extra time provided by the mediator, then they need to have that end time in mind throughout the day. Let’s say that end time is 5.30pm. In an in person mediation participants often want to leave dead on time by 5.30pm. They have scheduled their day to do so. They could have a long drive home from the mediation, several hours, and want to leave as soon as possible. In an online mediation, with no travelling, people are often “too comfortable” at home and so when 5.30pm comes around there is no incentive to ‘get home’. Roger finds that a suitable overtime rate can often be the solution! Ring ring Zoom does not have a door bell facility so as the mediator you either have to agree with the parties to text them first when you want to enter the room (more annoying than it might sound) or you have to arrive unannounced. This can be awkward as people can be mid flow and it could be information they did not intend for the mediator to hear, or in cases where there are multiple participants in particular, it could be the case that nobody notices you or hears you say you are there. You then seem like you are a spy! To conclude The issue for mediation and for mediators is that when there are technical issues, whether it be poor broadband, user error, arriving unannounced or whatever, the mediator cannot help but feel responsible, and the parties look to the mediator to be able to solve their local issues. How am I, as a mediator based in Essex, supposed to solve a local broadband provision issue in West Lancashire? I have found online mediation to have its challenges but as a secondary tool to in person mediation it appears to be no less effective. It can lead to mediation being set up more quickly (no travel and easier to schedule in diaries), it can be much cheaper (no travel, no hotels, no refreshments) and in my experience the settlement rate is just the same whether the mediation is done online or in person. The key difference is user experience. This is very important and something which could impact on a party choosing to use mediation again. Even if they achieved a settlement first time round, they might have found the experience uncomfortable and not want to go through it again. My advice to parties would be to give online mediation a shot if you are uncomfortable (or barred) from meeting in person. It works, it may feel slightly awkward - but it works.