Virtual Mediation: 12 Lessons Learned… One Year Later

On March 11, 2020, the World Health Organization (WHO) declared COVID-19 a global pandemic.  This past year has truly been an annus horribilis! How we live, work and connect has changed in ways that are likely here to stay for years to come. When COVID-19 emerged, workplaces, institutions and entire industries and professions scrambled to continue operations.

For me, March 11^th marked the last day I conducted a mediation where all participants attended live and in-person. The next day, I began investing my time and energy in getting up to speed on mediating online, investigating resources, adopting and learning new tools, and assessing how to promote virtual mediation and deliver excellence to my clients.

As I look back at the past year, here are 12 lessons I learned along the way (in no particular order):

1. Mitigating organizational risk is paramount.

Moving mediations online ensured dispute resolution continuity, BUT the transition wasn’t without pre-planning and tweaking along the way to ensure confidentiality and security of information (including videoconference settings, stable wi-fi, remote environment privacy in a home setting, record retention and so on).

2. Be familiar with a few videoconference platforms, adopt a standard, yet always be flexible.

While I settled on a Zoom Enterprise Group Plan with ADRIC as my videoconference platform for mediations, that is not to say every corporate participant would agree to use it. Some businesses may not be able to use Zoom because of compliance to company-wide IT systems and platforms. Also, some participants were uncomfortable with technology, or had privacy issues or disabilities preventing the use of virtual mediation.  I learned to explore and propose alternatives to accommodate clients, such as personally getting up to speed on other platforms, such as Microsoft Teams, or engaging in telephone mediation, or even suggesting a support person be someone with IT services skills, such as a family member.

3. Verify and obtain agreement with clients on mediation type.

Determine well in advance, at time of booking, whether the mediation is:  in-person, virtual, or hybrid. Lesson 2 led me to here, as well as to incorporating the type of mediation into my initial confirming documents.

4. Verify and obtain agreement on a videoconference platform with clients prior to booking.

Finding out the day before a scheduled mediation that my platform was unacceptable to a business client also led me here. See lesson 2.

5. Verify and obtain agreement on the mediation participants.

Who is participating? Non-party participants who were not known to all parties could show up at the last-minute. I learned to determine all non-party participants like support persons (spouses, interpreters, or technical support) in advance, and then obtain unanimous consent, and the signatures of non-parties Mediation Agreements.

6. Set expectations and explain how your virtual session works.

Not only did I learn to outline how my virtual mediation process (and the technology) works in pre-mediation calls, I also offered a hands-on demo of a virtual mediation simulation for those less comfortable with one. This was also a good time to determine if there would be an initial joint / plenary session (and who will/won’t be speaking), or caucus-only. Additionally, I developed a guidance package for all participants on preparing for mediation, including how to use the technology, the logistics of a digital settlement agreement (a.k.a. minutes of settlement), and virtual mediation etiquette. Yes, I learned that online behaviour can be somewhat different, especially for a high conflict party sitting behind the comfort of a screen. Conversely, I observed some people behaving better in front of a camera—perhaps because there is an ability to watch yourself, and perhaps because of the absence of an in-person adversary.

7. Be Plan B ready.

You can bet something will go wrong in an online setting. Like most people, I experienced a few hiccups, like a brief power failure, internet service instability or videoconference platform outage. I learned to secure coordinates for all participants in advance of the virtual session in case of unforeseen events (for text, email and/or voice calls). This also ensured an added layer of secure interaction.

8. Amp up empathy.

Like at an in-person mediation, you need to allow the time and space to address any emotional needs that surface, and to build rapport. However, a virtual space requires novel ways for demonstrating emotional intelligence, and active listening, for both mediators and lawyers. What works in-person, may not work online – and vice versa.

9. Be aware: little things are an even bigger deal online.

I’ve always said that little things can make the difference between mediation success and failure. People can quickly feel disrespected by their opponents’ behaviour (even when the opponent didn’t intend any disrespect), thereby harming, or even dooming, a mediation from the beginning. I found this to be bigger deal online for reasons I am still figuring out. So, I learned early to identify these potential pitfalls and to address them prior to and during the mediation. For example:  Ensuring participants log on punctually (since it is unlikely you can now blame being due to traffic, transit delays, or inclement weather), ensuring I am instantly accessible during private caucus sessions to avoid delays (Zoom’s “Ask for Help” function helps here), and making sure people can stick around if the mediation goes beyond the scheduled time, or at least ensuring that hard stop times are well known.

10. Get ready for hybrid mediations.

By “hybrid mediation” I mean that some or all participants on one side of a dispute will attend in person with the mediator, while those on the other side(s) will attend remotely using technology. I am anticipating that as COVID-19 cases eventually go down, and as more people become vaccinated, restrictions will lift and many – but not most – lawyers and parties will want to return to in-person mediations. This is unlikely to happen for some time. Virtual mediation will still be the norm, and it is here to stay. Yet not everyone will want to use a virtual platform – or use it all the time – when they feel they no longer need to do so for health and safety reasons. I have also encountered situations where people simply can’t participate virtually. At the same time, on the other side of a file, there will be those who can’t participate in-person due to ongoing health and other concerns – or they cannot participate as early as those in the other camp. Then there will be those persons who are such zealous converts to virtual mediation that they can see no reason to ever participate in an in-person mediation again. Thus, we’ll see an increasing number of hybrid mediations – either as a result of compromise or a court order – in order to satisfy everyone’s concerns. Which is best for you will depend on a number of considerations; some of which I outline here.

11. Think ‘whataboutmeism’.

Creating a breakout room for myself so I could collect my thoughts and update my notes as well as to get up, stretch, and eat, without interruption, was nothing short of revolutionary (although I learned not to snack on Doritos and kept coffee far away from the keyboard.) I bring up this last point as a lesson in self-care. As a result, when counsel and their clients have downtime in their own breakout rooms, I encourage them to turn off their cameras, mute themselves and take a break for a few minutes.

12. Know: “The more things change, the more they stay the same.”

Ultimately, I took away one key lesson:  While the upheaval and turbulence of the past year disrupted the previously unquestioned default status of the in-person mediation, on a deeper level, our need for human connection remains unchanged. I have a lot more to learn in what seems like a “never-ending March 2020”.  Now that we have had a chance to catch our breath (and maybe even glimpse a safer future thanks to vaccines), maybe we can expect an annus mirabilis!

From the outset of my solo mediation and law practice in July, 2019, I have operated a remote practice and thankfully did not experience much operational fallout due to lockdowns and remote operations.  I aspire to digital experiences, continuous improvement and regular communications that enhance my clients’ needs and welcome suggestions. I also urge lawyers and parties to triage matters that lend themselves to virtual mediation.  There is no turning back from online dispute resolution.

Lastly, self-reflection…

It’s been a busy year for me educating the legal profession about virtual mediation advocacy through articles, more articles, webinars and my eBook and other resources.  Some other contributions include LexisNexis Canada virtual mediation practice note, Practical Guidance Litigation & Dispute Resolution>Mediation & Settlement>Virtual Mediation.   Just for some fun, I even took a satirical look of ‘what not to do’. Enjoy!

Mitchell Rose is a Chartered Mediator and Settlement Counsel with Rose Dispute Resolution and Mitchell Rose Law in the Greater Toronto Area. He advises employers and employees on contractual and severance issues, and he mediates and arbitrates employment law and various other civil disputes. Mitchell is 2020/21 Chair of the Alternative Dispute Resolution Section of the Ontario Bar Association, and a member of  the Canadian Academy of Distinguished Neutrals (Ontario Chapter), and a fellow of the International Academy of Mediators.

To book a mediation: www.mitchellrose.ca/bookamediation.