Remote mediation – surprisingly it has pro’s as well as con’s14 April 2020
I got some experience practising in the area of remote mediation while working on a court scheme. At that time, we were using Skype for video calls but we also used the phone without video as well. The basic principles of mediation remain the same. Doing mediations remotely, I became convinced that, while remote mediations had some disadvantages, they also had (suprisingly) some advantages. My conclusion was that the advantages outweighed the disadvantages. Some cases in fact lend themselves to remote mediation, principally those with an international element where getting participants in the same geographical location may be impossible.
Having to mediate remotely should not put you off the process. In fact, coming out of this current health crisis, there may well be an increase in remote mediations even where face to face mediation is theoretically possible. There is no reason why, with modern technology, you cannot carry out a mediation remotely and do it just as successfully as with a face to face mediation.
Defining terms: by “remote” mediation I mean any mediation where the parties and the mediator are not physically present in the same location but are rather communicating with each other and the mediator by either telephone (including Skype or Hangouts or equivalent) or some method of video conferencing (Zoom, GoToMeeting or whatever).
What does not change and what has to change
Some things do not need to change: the parties will have to go through the usual process of choosing a mediator and agreeing terms. The only possible difference at this point is that the mediator is going to have to be someone who is happy to conduct the mediation remotely. The other thing to be agreed is the technology platform to be used. This is normally going to be the mediator’s preferred platform (Zoom, GoToMeeting, Teams, etc), as it is important for the mediator to feel comfortable in conducting the mediation, otherwise some time will have to be spent on bringing the mediator up to speed with a different platform.
The parties will in the normal course agree dates for exchange of position statements and the date for the mediation. Again, there is a difference here. Anyone who has had the gruesome task of trying to agree a single date where the twelve representatives of the parties and the mediator all happen to have a day completely free in the next two weeks will know the problem. What tends to happen in remote mediations in practice is that participants can signal times when they are not going to be available during the mediation day, so that the mediator can work around this.
Another advantage for a remote mediation is that the costs of travel and the time taken to travel (especially internationally) are eliminated at a stroke. A potential disadvantage is that people will be working across time zones, which can disadvantage the party that finds itself in a lengthy mediation going beyond midnight in its time zone while the other party across the globe is still relatively fresh and working at what is for it a normal time. I have had the exprience of hearing embarrassing family intrusions during a remote mediation conducted by one participant in what was his evening at home, although the current trend towards home working means that people are more tolerant of this sort of thing these days. Whether it can lead to concerns about confidentiality is a different issue, however.
Remote mediation still requires the full participation from everyone involved, but getting a time when everyone can be near a computer is much easier than getting them physically in one place, especially when international travel would otherwise be involved. Sometimes at a mediation, a particular person (such as a subject matter expert) might only be peripherally involved: no point having them sit around for most of the day waiting for one meeting, much easier to involve them by getting them online only when they are needed.
In practical terms, a remote mediation can be harder for the mediator to manage. Participants from the same party might be remote from each other as well from the other party and their attention might be diverted to other urgent tasks arising during the mediation day. The mediator should be prepared to “task” individuals during times when he is speaking to someone else to avoid them becoming distracted by their other daily duties and keeping them focused on the mediation.
Talking of participants, there is more sense in remote mediation in keeping them to a minimum: it is harder to interact using a platform like Zoom as the more participants there are, the smaller the images on screen and the more alien it starts to feel. You do not want the mediation to start to resemble a webinar – you still need to try to build relationships across the digital platform.
In some ways, conducting remote mediations is actually easier: with a face to face mediation, getting people to join in a private meeting, such as putting the lawyers together or the subject matter experts together in a private session, involves finding a spare room and getting the people physically there. Using a video platform, it can be easy as drag and drop: the mediator as host can create a new breakout room and simply allocate the right personnel with a few clicks of the mouse.
Another possible downside of remote mediation is that of non-participation. While not a few mediations see dramatic threats to walk out (and some actual walkouts) by one or other party, the ability of a participant just to hang up in a tantrum has to be faced upfront: the mediator will doubtless have everyone’s phone number for use in a crisis or when a true one on one conversation is required.
The only difference using a video platform is that it has all the potential to go wrong e.g. one participant for no (obvious) reason loses the connection. This is a reality and it has to be faced. Check whether everyone has access to decent broadband: not such a problem in the office, but if someone is joining from a rural location, it may become an issue. That person may need to re-locate to a better served location for the mediation day or it may simply be the case that such a person must dial in using a phone (without video).
Another issue is that some people may be unfamiliar with working through a conferencing platform – less likely these days, but still a real possibility and there could be some element of trying to train those people and to convince them that the process can work remotely. The mediator should take the opportunity to trial the platform with all participants in pre-mediation communications so that everyone is comfortable with the process.
Mediation has been sold for years on the basis that it involved a mediator who, among other things, was skilled in reading body language. How do you do that if you cannot eyeball the parties’ representatives and participants? One tip is to make sure that everyone is using the best webcam they can get their hands on (and which will work within the limitations of their broadband). This last point is important: some modern webcams are capable of astonishing resolution, but unless the broadband can cope with that much data it is counterproductive and the webcam’s settings must be changed to a lower resolution.
Some people use their mobile phones and many use their laptops: this has the unfortunate result that other participants in the remote meeting will be staring up their nostrils on the screen. It is hard to gauge emotional response while looking up someone’s nose. If you simply have to use a mobile phone, try resting it on some substantial books so that you are staring at it directly. The same thing can be done with a laptop to minimise that nostril experience. Also some acting experience is helpful as you need to remember to try to look at the webcam when speaking, not stare fixedly at the person on screen that you are trying to address, which will have the effect for other participants that you are looking (normally) downwards and appear to be avoiding eye contact. This could send the wrong body language message.
The participants will also realise that they have the choice of communicating otherwise than by the video platform – so that people could be receiving emails or texts or other messages. Again, some people try to mask this by turning their phones (or whatever) to mute so that the other participants do not realise that they are receiving a series of texts at a crucial point in the negotiations.
More difficult areas
Remote mediation may, of course, throw up its own problems. One fear is that someone involved could be recording the day’s proceedings. Naturally, this could happen in a face to face mediation as well using covert techniques. Mediation agreements can include a provision to prohibit this of course, though there is still the element of trust to get over. The mediator as host will often have the ability to record everything, which the parties will normally want the mediator to agree not to do.
A futher problem might be confidentiality. With face to face mediation, the parties will presumably have chosen some location that they trust to be reasonably confidential and safe from prying eyes and ears. With remote mediation, you can never quite know who is listening out of the shot of the webcam, and this is especially so when someone is working from home or perhaps communicating from a rented suite or (worse) a public space. Again, the mediation agreement can deal with this, but it does come down again to a question of trust.
Finally, the parties should be clear at the outset on how a settlement agreement should be, firstly, drafted and, secondly, executed. Use of online collaborative word processing (like Google Docs) can make the drafting easier, as can screen sharing on the conferencing platform, but there could be issues around execution remotely. The parties should deal with this point in the lead up to the mediation.
While there are undoubtedly issues in conducting remote mediations (building trust and rapport being the top issue) it has to be said that remote mediations should be seen as an opportunity and not a threat: a real oppportunity to take advantage of the positive aspects of remote mediation outlined above. Any mediator will tell you that much will depend on the specifics of the dispute and the surrounding circumstances, so there is still the possibility that face to face mediation might be more effective for the particular dispute in question. Where all the parties are local to each other, it has to be said that face to face mediation is still probably going to be the better option, but in all other cases remote mediation should be seriously considered.
Richard Stephens, 16 April 2020
Caveat: this is for general guidance only and you should seek specific advice before applying any of the material covered in this note to a specific situation.