Adding Value to the Online Mediation Experience

With the proliferation of new technologies and almost every industry experiencing digital transformation, there is no doubt that the way we communicate and do business is rapidly changing – and dispute resolution is no exception. More and more people not only hope for, but in fact expect that everything can be done online quickly, securely, and from the comfort of their own home or office.

So, what does this mean then for mediators, dispute resolvers, lawyers, and parties in the thick of conflict?

We are seeing practitioners start to adapt to this changing landscape by using Skype, Zoom, or specially designed applications (such as RDO) to provide their services online and bridge any geographical limitations that may exist. The rise of online dispute resolution or “ODR” seems to be a repeat headline in every dispute resolution forum and publication in recent times.

But can we truly have tough conversations through our screens and keyboards, help people find enduring solutions, while also keeping their relationship intact? Do the same skills and procedures apply when conducting mediation online, or do we need to develop new rules and a whole new toolkit?

Let’s start by first looking at some of the risks and challenges posed by online mediation.

Technology makes things easy – maybe too easy

Mediation, generally speaking, is a voluntary process. No one is forced to participate in a prescribed way (except for an obligation of good faith in some jurisdictions) and parties are not required to reach a settlement agreement. This means that a mediator or the parties can terminate the process at any time. A party might do this by simply standing up and walking out the door partway through a mediation session. Most parties naturally feel quite uncomfortable and unhappy when they are in mediation (at least at the start), so mediators often have to prepare for this kind of behaviour.

Now for meetings conducted face-to-face, there are usually some impediments to discourage people from walking out – anything from social etiquette to a more physical barrier (such as a mediator sitting or standing in between the person and the door).

For online mediations on the other hand, leaving the meeting is as simple as a click of a mouse. Someone might even turn off their phone and computer to avoid any subsequent contact with the mediator or the other side if they really felt like they had had enough. As much as technology makes it easier to connect with people, does it make it just as easy to give up and disconnect?

The devil of distraction

We all know that conflict is often emotional and stressful for people – and trying to resolve conflict can be an exhausting process. Mediation requires parties to focus and think constructively about solving the problem at hand.

When we move communication to our screens only, a mediator has less control over the parties’ environments which means people can be susceptible to distraction. We have no idea what a person is really looking at on their screens or listening to through their earphones. One of my mediator colleagues told me that she once had a party participating in an online mediation from overseas and he was clearly starting to fall asleep (different time zone), until his head started drooping so far forward that all you could see on his screen was his forehead!

How do we encourage people to stay focused during emotional conversations with reduced control over our environment?

Technology a double-edged sword

It is paradoxical that although technology is designed to make things easier and more convenient, the technological “difficulties” we are all familiar with can completely negate any of those intended benefits, or even do more harm than good – wasting time and increasing frustration of people that are already experiencing high levels of frustration.

The first step in starting an online mediation is making sure that everyone is connected to the call and everyone is seen and heard. Assuming that step is completed successfully, the next step is to ensure everyone’s connection is stable enough to maintain an uninterrupted meeting. Consider what the impact would be if an individual’s connection led to a slight audio lag, even if for just half a second? Pauses, intentional or otherwise, are powerful when it comes to communication and how we interpret someone’s message. They could change the dynamic of a whole conversation.

Could the risk of technological difficulties be too high to attempt online mediation? Technology is a double-edged sword. Just like fire can cook our food, it can also burn us.

Adding Value

With over 4 billion people using the internet and that number growing daily, it is becoming increasingly important to adapt the practice of mediation to meet client demands while preserving the benefits of the traditional process. In the face of inevitable change, what can we do to add value to online mediation and mitigate the potential risks?

• Manage environment: To maintain control of parties’ environments, mediators should propose and enforce “no interruptions” as an important ground rule of online mediation. No phones, emails or scrolling social media during the meeting! Surely there’s an app which will force close all other windows except the video call? (Over to you, programmers!) It may also be easier for parties to have documents in hard copy or accessible on another device, so it is more obvious when they are reading them.
• Fatigue: There are various signs of fatigue that may not always be picked up when meeting online, like fidgeting or restlessness. It’s important for mediators to be mindful of these and manage breaks accordingly, especially when meetings are planned to run longer than two hours.
• Walk out: Another equally important ground rule is managing a virtual “walk out”. I have been involved in phone conciliations where one party has decided to completely abandon the process midway through due to rising emotions. Make sure that the parties are prepared to participate in good faith and consider whether the matter is suitable for online mediation.
• Best option: Face-to-face communication is inarguably preferred in resolving conflict, so why would you opt for meeting virtually? There should be a good reason for online mediation (cost and time savings, geographical limitations) that would outweigh potential challenges, and most importantly, all pros and cons should be discussed with parties before proceeding.
• Nature of relationship: How do the parties usually communicate with each other and will they continue to interact with each other after the mediation? Consider the impact that an online mediation may have on the parties’ relationship, whether the mediation results in settlement or not. If there is limited possibility of an enduring relationship, phone or online methods may certainly be suitable (such as a tightly controlled conciliation relating to termination of employment).
• Process stages: Even “offline” mediators will use technology at some stage throughout the process – often preliminary conferences will be conducted by phone or video call for example. If a mediation session is not conducted online, perhaps there are stages of the process where it is suitable for technology to be utilised. There are a raft of tools and applications out there that can supplement the face-to-face meeting, such as meeting schedulers or collaborative documents for drafting settlement agreements.
• Representatives: When parties are represented, it may be helpful that they are in the same room together if possible. Even when a party cannot physically meet the mediator, they may be comforted by being with their representative.
• Plan early: 80% of the success of mediation is due to its preparation, and this is no different when it comes to online mediation. The technical arrangements of the process should be sorted out well in advance of the meeting (consider a test run) to ensure it runs smoothly on the day – software requirements, connecting to the meeting, camera placement, audio, and so on.

Like most things in life, online mediation has its upsides and downsides. The important thing is to understand the different offerings (online or offline), match the process to the dispute, mitigate any risks and prepare thoroughly.

Have you been involved in an online mediation? What was your experience?