Having served as a mediator for twenty-plus years, I am generally a proponent of having the mediation take place in person, with all decision makers physically present. I have always believed it was important to be able to see people during the mediation in order to secure trust and develop rapport, and also to read and evaluate micro-expressions during the process. Humans by nature connect and evaluate one another in various ways, including through eye contact and body language, both of which are visual cues, as opposed to voice inflection, which can, of course, be detected over the phone. Yet, from time to time, I have conducted mediations by telephone, although I have tried to limit those to instances where the issues were discrete enough that telephonic shuttle diplomacy would still get the job done. However, in the face of COVID-19, at a time when so many courts are not even allowing in-person hearings or any hearings at all, finding a way to conduct online mediations becomes essential for many to continue their business.
Many practitioners are turning to existing tools, such as WebEx and Zoom. These programs still satisfy that “in-person” touch that so many mediators and participants desire because they allow the parties to hear and see each other via webcams, and they also allow for separate sessions to be created, thereby mimicking joint and private caucuses. While these are great options, there are a few considerations that users should keep in mind. First, no matter which platform you choose, you must be facile with the program and have the ability to not only use it yourself, but also be able to guide the participants who may not be as familiar with the platform so that they are equally comfortable. To that end, aside from taking the many training sessions that are popping up, be sure to practice the use of the technology yourself. There is nothing more frustrating to a mediation advocate or participant than technology that impedes rather than enhances the mediation process. Thereafter, I would recommend that you set up a time before the actual mediation to virtually “meet” with each side, including clients, to be sure they are equally comfortable with the technology. Just as you would ensure that participants are comfortable in your conference room and understand where the amenities are located, they need to be sure they know how to use the mute button, or discretely request, set up and/or participate in a private caucus session. Second, as the mediator you need to ensure that all parties are comfortable with the confidentiality of the online process. It is easy to gauge confidentiality when you are sitting in a private conference space and can determine that what is being said is only being heard by the actual participants who are present in that room. With online programs, there is a limited view of where the other participants are physically sitting. Moreover, all of the platforms have recording features, which you should ensure are turned off and you should request that all participants do the same. You should review and identify the confidentiality expectations with all the participants and stress the importance of maintaining confidentiality of the process; whatever presentation you normally give for confidentiality should be modified for this new format. Further, you should stress, in advance, that the parties themselves should be in a private space where they cannot be overheard. The parties should not be on public WiFi and should be in an area with good connectivity to avoid disruptions to the process. Third, you need a contingency plan in case the technology does not work and/or the participants, despite prior testing, cannot get it to work.
Mediation is always dependent upon the parties having trust in the mediator and the process. It is important to keep in mind that not everyone is comfortable with or trusts technology. Therefore, in order for the process to work while utilizing these alternative methodologies, it is up to you as the mediator to do your part to properly set the stage, and establish the trust in you, the technology method, and the process. Any good mediator spends time setting the stage in advance by reading position statements and speaking to the parties in advance; now mediators should add a review of the technology to ensure that the parties are comfortable as one more step to achieving a successful process. How you build that extra time into your fee structure must be decided by each of you, but presently, my thought is not to charge for X hours of technological preparation.