Virtual Mediation – Has it Changed how we Mediate?

by Eileen Carroll QC (Hon)

Until Covid-19 struck, I had assumed that the work of the mediator in creating an environment for clients to listen to each other, to get a real understanding of what is driving the conflict and what kind of steps and responses were going to be needed to find an acceptable resolution was highly dependent on face-to-face interaction and connectedness.

However, I have discovered that the fundamentals of mediating online are the same as in-person, even though there are variations in the process.

Lockdown and the necessity to help clients and their advisers using virtual technology, has created a spirit of collaboration. It has also created the opportunity to work with lawyers and their clients at an earlier point in time.

In all of my online mediations, I have conducted private sessions with the teams before the joint session day. This has helped teams work together, get to know me and be better prepared for the joint session day.

Working more proactively with each team and getting to know them before the more intense mediation day has been one of the real positives of this difficult time.

In the pre-virtual world we often thought of mediation in phases;

  • The first phase – the preparation: reading position papers and background documents, including a call to lawyers.
  • The second phase – the day of mediation with joint sessions and private sessions exploring all-important underlying issues that may affect or open up/block settlement.
  • The third phase – exploring solutions and timing and manner of proposals and reaching a settlement.

As mentioned, the need to work virtually has created the perfect opportunity to schedule earlier calls with clients, as well as their advisers, so that we can all talk about working together in a different way.

Getting the clients comfortable with the virtual environment and the confidential breakout territory is only a small part of the early intervention.

Having mediated now extensively online, I now wonder why I didn’t use this medium more.

It is effective to meet the clients and advisers through videoconference before the main mediation day and when we go back to person-to-person mediations, I would still continue with video conferencing rather than telephone, where possible.

Understandably, there is a certain amount of Zoom fatigue out there.

This probably relates to camera performance and the need to concentrate on core communications, as well as the technology and often multiple channels and virtual platforms in use in a typical day i.e. WhatsApp groups, emails etc. Not to mention the day-to-day distractions of losing participants because their battery runs dry or other unexpected events in their immediate environment, including children and pets.

I have noticed that I am much more hands-on in setting up what used to be my pre-mediation calls.

I now send out my own invites. This is because I often set up the environment and rooms even for these pre-mediation day calls. I want to feel a part of creating the environment I’m going to work in, which includes thinking about the breakout spaces as if they were physical spaces.

The naming of the rooms helps create the psychology of the space that you, the mediator, are navigating. You are the host and responsible for ensuring everyone feels safe and connected in their own space, and it is your responsibility to move them fluidly into other meeting environments.

At the end of my mediation processes, I always leave the environments open for at least an hour so that the clients and advisers can talk on as they would do in the physical environment. A good host does not push their guests out the door!

This brings me to mind-set.

I try to think about my mediations in the same fundamental way as I’ve always done – how do I create a trustful and respectful environment? We’ve always known as mediators that the environment is not just about physical space but about psychological space. The fact that some clients are able to mediate from their factory floor or home office turns out to be something very positive. Many clients like not having to spend 10 or 12 hours in a fairly enclosed space in the city centre.

One of the questions I’ve been asked frequently over the last several months is, can you make an emotional connection in a virtual environment?

My answer is yes, and it’s essential.

In all the years I have mediated, I have witnessed a high degree of emotion.

It does not matter whether the dispute is around intellectual property rights, a failed joint venture, a dispute over construction of pipelines, a power plant failure, or issues arising from the banking crisis. The common thread is deep deadlock and lack of trust, with many other emotions woven in.

In any human communication, an emotional connection is vital.  If you actively listen to those who have a deep conflict, you build trust. It is not enough to just listen, you have to really engage and ask good questions which are open and allow some of the realities to be exposed.  Engaging at this level with lawyers and the clients definitely develops connectedness and engages emotions.

The private sessions with clients and their advisers before the main mediation day is a very helpful tool to get to know the people and create a relationship, and one of the benefits that this lock downtime has presented to us.

A sense of sharing is also vital.  What many have said to me, with the weirdness of this time, is that there is no doubt that mediating at this particular point in history, with all its challenges, creates a revived sense of level playing field but also a sense of connectedness.

I have found also that a sense of humour is imperative for working in this environment, particularly if there are technical problems or if a builder starts working with the drill or the delivery man arrives with the groceries!

If I reflect on what I’ve enjoyed most in my mediation career, it is building relationships with people and helping them to construct effective business communication even in difficult circumstances.

What better context for this goal, than in our current constrained world?

Let us hope too that these experiences embed a deeper sense of connectedness for all of us when we move to the post-pandemic, new normal.

Eight Tips for Mediating in a Virtual Environment:

  1. It is never too late to learn something new and it is all about practise and a positive mindset.
  2. Focus on the mediation and developing a relationship with the client, the technology is just a tool.
  3. Get in touch with your clients and advisers early and start building a relationship.
  4. Remember all good communication is conducted at a human level. Take time to understand the clients’ needs and get to know their advisers and their team and how they work together. Keep a light touch and remember a smile helps.
  5. In the virtual environment, think about your surroundings, your own dress and your voice. Are you creating as good an environment as possible? Be yourself.
  6. The psychological space is every bit as important as the physical space.
  7. Plan your day well and the timings. Give everyone breaks and time to have exercise, and especially time to think.
  8. Enjoy the fact that you do not have to travel home late at night!

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