How covid-19 induced “pivoting” has increased mediation effectiveness

“Pivot” … the buzz word of 2020 … it was hard, but now I am celebrating.

Many mediators have been forced to rapidly “pivot” and redesign their face to face mediation practices into an online offering. I know I have certainly spent many, many, hours learning how to navigate Zoom, Webex, Microsoft teams and Modron. I have also spent many hours collaborating with wonderfully generous mediator colleagues brainstorming how online mediating can be “done well”. I can confidently say that the mechanics of mediating online is no longer “the great unknown”. I have also written several Linkedin posts on tips for mediating online, and blog posts on the mechanics of mediating online and some of the features of the different online platforms. 

But as restrictions are lifted – has all that learning been in vain? will parties discard online mediating and run gratefully back to face to face mediating?

I hope not … because what online mediating has taught us, is the importance of really honing in on the human element of dispute resolution, I think it has enhanced, not hampered, my mediation skills.

So, I am hopeful that the new frontier will see a mix of face to face and online mediating, so that those skills can continue to be developed and the soft skills exercised while “pivoting” leads to an overall increase in the effectiveness of mediations.

A key skill of a mediator is the ability to facilitate discussions so that the parties are empowered to express their concerns, feel heard and, as a result, are more likely to consider the other parties’ perspective of the dispute.  Mediating online, done well, can go along way to creating the right environment for that to occur. All the reasons why that is so would fill a book, rather than a blog post, so I will only touch on two elements: its virtual nature, and how a mediator’s soft skills are being enhanced.

What difference does the “virtual” nature of online mediating make?

The obvious answer is the reduced travel time and reduced costs. There is no need for parties in regional areas to allocate a few days travelling to and from a mediation, with the associated costs and lost productivity. For some parties however, the very fact of having to leave the familiarity of their home or their local area escalates the anxiety and apprehension they may already feel about the mediation itself. If a party is able to remain in an environment where they feel safe and confident, there is one less distraction for the parties on the day, and they are more likely to feel empowered to consider different perspectives and compromise. It’s very difficult to get a person who is already feeling out of their comfort zone physically, to abandon a positional stance they may have adopted for some time and shift their perspective to an uncertain future.

A less obvious benefit of the virtual nature of an online mediation, is the way it can potentially level the playing field between the participants and strip back the impact of some features of a face to face mediation. Subtle factors such as the energy that different participants bring into a mediation room can have a significant role to play. We all know people, whether they be family, friends, colleagues or lawyers, that have a certain presence when they enter a room. Their height, size, dress, volume of their voice or mannerisms,  all combine to create an certain persona or energy. I have certainly had some more diminutive participants (parties and legal representatives) remain very closed off and detached in an open session, and then express to me privately that they have no desire to engage in negotiations when they feel intimidated or looked down on by a “larger than life” opponent.  Put all parties online, with each getting the same size thumbnail image and the mediator, closely managing the interactions between the parties, and a lot of those imbalances fall away.

Another lovely feature of mediating during covid iso is the way it has, for many, emphasised that parties to a dispute are, at the core, human. During many mediations I have had the privilege of meeting family pets, seen holiday snapshots and had funny moments as children run unexpectedly into an office – and this has been with people in very high profile positions, people who would, face to face, slip very much in their “CEO/lawyer/plaintiff role” and act accordingly- by allowing a little of the human side to creep in, for some, that positional role is soften.

How has online mediation lead to a honing of mediators’ soft skills ?

A good mediator should be able to establish a relationship of confidence and trust with the parties so as to facilitate discussions, help parties to evaluate the strengths and weaknesses of their position and consider ways to resolve the dispute.

While working in the two dimensional world of online mediations, mediators have less material available to them to project their authority, empathy, understanding and trustworthiness, and less information available to read the other participants. Face to face I could establish immediate authority by meeting participants at reception, shaking hands, leading them to the board room, and sitting at the head of the mediation table. Now, I have to establish authority by controlling the entry of participants, setting ground rules for when people speak in a joint video conference and “pinning” myself (on some platforms) so as to ensure my image always remains on the screen. Having exercised that muscle of “establishing authority” I have no doubt that some of those techniques will carry over the face to face mediations (except the pinning!).

Mediators have also had to work a lot harder to build rapport with participants online, again, as they are now having to do so with a two dimensional image, usually of someone from the waist, or mid torso, up. As a result I have found that I now focus a lot more on facial expressions, voice modulation, speed of talking, pauses between sentences. And the result … the underlying interests and concerns have been a lot easier to uncover, I am focussing more on the participants and asking a lot more questions that seem to reveal the real strengths and weaknesses of each parties position.

In some respects I am a chameleon, I have been forced to focus much more acutely on the social cues and behaviours of each individual participant to really focus on where they are at and what they need at that exact moment in time. I am being very purposeful in my online interactions so as to rapidly develop that rapport that is a necessary prerequisite to being able to reality test the position that a participant is taking or proposing.

I am also finding that I am a lot more conscious of the impression I am projecting as the mediator. In large multi-party mediations, where there may be many people on the screen, the tone of voice I use and the ground rules I set for the joint session, tend to be more formal and projected with more gravitas – I have found this has become necessary to avoid people speaking over the top of each other but also so as to set a very neutral image that moderates and neutralises the dynamics some parties may have brought into the mediation. Whereas in the private sessions, I am watching very closely to read whether the parties are more relaxed, more likely to open up and discuss their real interests. If that is the case, then my tone and demeanour is similarly more relaxed and informal. I have also found that I have had to concentrate even more so on facial expressions and tone of voice to learn about the dynamics between the parties and their lawyers, than I would have previously done in a face to face mediation.

One final matter worth mentioning is how emotion is dealt with online. In almost every form of human interaction, people have an innate desire to be heard.  When a party shows distress, sadness or anger it can be dealt with in two ways – naming and confronting it (eg “I can see how upsetting this has been for you“), or by glossing over it (eg “why don’t we just take a break “). By the very nature of face to face mediations, it is much harder for a mediator to gloss over an emotion and most will confront it, however clumsily that is done – sadness or grief may be responded to by simply handing a box of tissues or getting a glass of water, and anger could be quelled by reframing the comment made. Online, the temptation is to ignore the emotion and focus on the mechanics of the mediation – after all there is no way to send a virtual tissue box.

However, ignoring the emotion of the dispute simply makes it harder to reach a resolution – the parties don’t feel heard, thereby making it hard for them to shift from a positional stance to a future focussed resolution mindset. To mediate successfully online, the emotions have to be addressed, they have to be named and acknowledged. It’s just how that is done is different. I have found myself deliberately slowing down my conversations when I sense people are getting agitated, lowering my voice when a party is getting angry, pausing for longer periods to ensure that parties have said everything they want to say, and deliberately using the language they use to convey a recognition of the emotion they are expressing.

Of course, all of these things were taking place in face to face mediations, however, by removing the information that is gathered face to face, it is like the other senses have been heightened and are working even harder.

So, while I have “pivoted” and “upskilled”, and confronted the prospect of business declining while people await a time that they can mediate face to face,  I actually feel that this period of online mediation may see increasingly effective mediations. As restrictions are lifted and parties have the option of face to face, or online, mediations, I am hoping that we continue to see a mix of both – the virtual nature of an online mediation offers many benefits to the parties, and continuing to force mediators to hone their skills mediating online, the overall effectiveness of mediations will undoubtedly increase. 

If you would like to discuss any aspects of mediating, face to face or online, please contact me on 0421 048 456 or by email – jsomerville@r3resolutions.com.au. You can also connect with me on LinkedIN to share information in relation to mediating generally.

My available dates, and bookings, for both face to face and online mediations can be found on our website, or by calling me on 0421 048 456

Concierge duties during COVID -19: the expanding skillset of an online mediator

Choosing what platform to use for your online mediation requires a certain skill.

Alas, since COVID-19 hit, my baking skills have not improved, I have still not finished watching Season 3 of Ozark and the garden is still in desperate need of a good weeding. But what I have done is rapidly expanded my skill as a concierge.

What is a concierge? The Oxford Dictionary defines a concierge as:

  1. a person, especially in France, who takes care of a building and checks people entering and leaving the building
  2. a person (in a hotel) whose job is to help guests by giving them information

Now that mediations have moved online, I have expanded my pre-mediation preparations to ensure that the online platform that the parties wish to use will best fit the nature of their dispute and provide them with the best environment to resolve the dispute.

While I have found Zoom to be a very flexible platform for online mediations, some organisations are moving away from it for fear of security breaches. While I am comfortable that those issues can be addressed, that is the topic for another time. What I am finding is that increasingly parties are requesting to conduct mediations via Webex or Microsoft Teams. I have licences for all three platforms and am comfortable on all of them – but the question is, what is the best platform for the dispute. Obviously there are many more platforms available, including newer bespoke platforms like Immediation and Modron, however I have confined my initial comments to the three that I am receiving the most request for at the moment (although, I hear that both Immediation and Modron are continually evolving and should be watched).

Here are a few key features of each platform which may impact the “mediation environment” and your decision on which one to use for your online mediation:

Zoom – Two features I find particularly useful in Zoom are the “waiting room” and the breakout rooms. When parties join a Zoom meeting the mediator host can activate a “waiting room” in which all participants enter. The mediator will then allow admit the parties either one at a time, or in groups. I tend to admit the plaintiff (with or without their legal representative) first and spend time with them making sure that they comfortable with the technology and troubleshoot any tech issues. I then move them into their separate virtual breakout room so that they do not need to “unexpectedly meet” the other parties  when they are not expecting it, or without their legal representatives present. Once all parties have arrived and have finished any preliminary discussions in their breakout rooms, the rooms can be closed and everyone pulled into a joint session. The number of breakout rooms that can be created within the meeting is almost unlimited so if it is a multi defendant matter then this feature is critical. Finally, as Zoom is fairly intuitive to join I find that even participants with limited technological skills tend to be able to navigate the platform with ease.

Webex – it is very simple to join a Webex meeting, which may be useful for a party that is less technologically savvy. However, Webex does not have a “waiting room” on entry, so I ask the parties to stagger logging in to the meeting so that I can assist with any tech issues and can ensure that the claimant, in particular, is ready to proceed. Once the parties are in the joint session the mediator can put them on hold – or into the “lobby”- but they cannot speak to each other while in the lobby. So what happens is that the parties tend to do the joint session and then the rest takes place by telephone conversations between the lawyers and their clients, and the mediator and the various legal representatives. If there is to be an apology or direct personal response, then either the mediator sets up a separate Webex meeting with the claimant and the apologist, or the apologist dials into the joint session and the mediator then puts everyone else into the lobby – I suspect that this may be disconcerting for some claimants as they will need to take control of the technology themselves.

Microsoft Teams – this platform was primarily designed for people within the same organisation to collaborate, so joining a meeting by someone outside the organisation can take a few attempts – often I need to talk people through joining a meeting (ie going via the browser and bypassing any suggestions to create a Microsoft account). If we are proceeding via Microsoft teams I will set up several separate Microsoft teams meetings – one for the joint session, one for each party and their team, one for mediator discussions and one for the legal representatives. I then invite parties to each meeting depending upon whether they are entitled to participate in that meeting. The benefit is that within each meeting the parties can confer via video link and can leave a meeting and join another meeting that they are invited to (rather than having multiple telephone conversations). A separate meeting can also be set up by the mediator for the apologist and the claimant which can take place via videolink. Therefore separate video conversations can be taking place simultaneously. To move between meetings, participants do need to physically hang up from meeting and rejoin other meetings via the original invitation – although once it has been done once it is pretty seamless thereafter.

We are in interesting times, the way we work and mediate is being forced to adapt. When discussing online mediations with clients it is important to consider the nature of the dispute and the unique features of the parties. As a mediator, it is my role to provide you with that information and guide you into the “building” (AKA online platform) that will best suit the matter.

If you would like to discuss any aspects of mediating in ways that do not involve face to face meetings, please contact me on 0421 048 456 or by email – jsomerville@r3resolutions.com.au. You can also connect with me on LinkedIN to share information in relation to mediating generally.