Useful articles on mediation
In the debate on the countervailing pressures to return to normality and help the economy versus continuing to WFH where possible, where do we who are involved in mediations as mediators, lawyers, experts and parties fit?
Many of us have been successfully doing mediations online for the last few months. One of the advantages of face to face is that we can view body language. It is amazing how much one notices when you can see people’s hands, which may show irritation, fear, calm etc. However, online it is often easier to see people’s faces, and the directness of the cameras means that it can feel quite close and intimate, which helps to build rapport. Doing preparatory sessions with the parties and lawyers before the mediation helps greatly, especially with parties who are less familiar with Zoom.
While the point about body language holds, in face to face plenary sessions with a number of participants it can actually be quite difficult to gauge the body language of everyone. In an online session using gallery view, this is evened out as everyone can see each other’s faces at the same time and distance.
When face to face mediations resume, if it is possible to find a venue with enough space in all the rooms, perhaps big boardrooms for all, will that take away connection, especially if we are required to wear masks? Will there be difficulty hearing each other and will it be more difficult to hear the tone that people use? Online we don’t have those difficulties.
Mediations are tiring, whether online or with everyone present in the same building. In a face to face mediation everyone needs to travel to the venue and home again afterwards. Online we sit at our computers all day. In my online mediations I have become very careful about ensuring that there are clear breaks throughout the day to avoid Zoom fatigue. In our own homes it is easier to relax quickly during a break than it is in a corporate environment.
Whether a mediation is conducted face to face or online, at the end of the day how the underlying factors are handled by the parties is the biggest determinant of settlement. Experience from mediators in this current online phase suggests that their success rate remains consistent, and that any failure to settle isn’t a result of the technology.