It’s hard to believe that it’s been over two years since the start of the Covid 19 pandemic. In 2020, there was such a frantic scramble to get on top of unfamiliar technology and find new ways to work so that mediations could continue. Fast forward to mid-2022 and it’s probably fair to say that we have all become experts on the various AVL platforms and have become quite comfortable working in all different scenarios. I guess this ability to adapt and greater work flexibly is one positive to come out of the pandemic.
This year, although lockdowns have ended, I have found that there are still many people requesting online mediations and, more recently, hybrid mediations – where some participants attend in person and others via AVL. I have also noticed an increase in Australia over the past few weeks in requests for an online and/or hybrid mediation as we face a surge in Covid and influenza.
Having the option of either a fully online, or a hybrid, approach has often allowed mediations to proceed when they would otherwise have had to be postponed or cancelled – for example when someone has had to isolate, or has been unable to travel due to restrictions. However, in other circumstances, parties are choosing these options for the sake of convenience, either for themselves or for their clients. All of these reasons are valid and it’s impressive that, as an industry, we are able to offer such flexibility in a profession with a reputation for being a little rigid.
There is a general consensus, and it has certainly been my experience, that fully online mediations can be just as effective as in-person mediations. I personally haven’t experienced any real decrease in successful settlements over the last two years of the pandemic. In some cases, fully online mediations can even be more effective, such as in scenarios where it may be traumatic for a party to come face to face with their opponent.
However, the effectiveness of hybrid mediations, that is where some, but not all, participants are online, is not as clear.
On the one hand, hybrid mediations can be useful and offer the following benefits:
- They can avoid the need for unnecessary travel by a participant and thereby reduce costs. This may be a party who lives interstate or overseas, or a claimant who may find it difficult to commute for medical or other reasons.
- Higher level decision makers who usually don’t attend in-person mediations can appear remotely and engage in settlement discussions. Often in face-to-face mediations, significant time is wasted by representatives trying to obtain instructions from those with authority. Having the ability for those decision makers to join remotely when needed allows both the mediator and other parties to engage in meaningful discussions that would otherwise not be possible and can increase the likelihood of a successful resolution.
- Mediations are less likely to be cancelled if a participant can no longer attend in person but is able to join via AVL. This obviously means matters don’t have to be delayed and may be finalised sooner.
- They can make it viable and convenient for a minor party (or even a potential party) to actively participate without incurring significant costs. The ability of a minor party being able to join remotely for a short period of time can lead to a contribution that would otherwise be unattainable.
On the other hand, in some circumstances, hybrid mediations don’t seem to be as effective as they would have been if they’d been conducted either in person or 100% virtually. Some of the reasons for this are as follows:
- The online participant is distracted. This usually occurs when there is an in-person mediation but one party asks to participate online as they have to juggle other commitments (such as a brief Court appearance or another meeting). In these situations, there is the risk that this party will not be as engaged or as focused as they should be, as they are juggling other work behind the scenes. This can be really frustrating for the other participants and can cause the momentum of the settlement negotiations to be disrupted.
- The claimant doesn’t feel heard or understood. I have discussed in some of my previous blogs the importance of ensuring that a claimant feels that they are being listened to and that their emotions are acknowledged and understood. This is imperative for a claimant to find closure and to be open to a settlement that is acceptable to all parties. Having an important party participate online, when all others are there in person, can make a claimant feel that their opposition is not taking the matter seriously and is not committed to resolving the claim. This can negatively impact the path negotiations take.
- The mediation can be disjointed. When all parties are present in person or the entire mediation is conducted online, discussions are able to flow and there is a feeling that everyone is engaged. Private or informal discussions can easily take place in smaller meeting rooms or online breakout rooms, and we all know that it’s these conversations that keep the ball rolling, sort out stubborn issues and can help persuade or calm a person down. These conversations become a lot more difficult to have when an important party is online but everyone else is physically present. It can mean swapping rooms often, asking different people to constantly move between rooms, having to stop discussions to connect with the party online etc. Negotiations can feel constantly disrupted and disjointed which can make it harder to reach a resolution.
- A hybrid mediation can make the other parties feel that the online participant isn’t showing the same level of commitment as everyone else. Although this is unlikely to be true, these feelings can negatively impact negotiations. It can sometimes be the case that people are less willing to compromise when they don’t have to face the other side – it’s much easier to dig your heels in or to even be unreasonable when you are not face to face with all participants, whether that be in person or all online. And let’s face it, it is easier to disengage (literally or figuratively) when you are online and everyone else is there in person.
I think it is fair to say that hybrid mediations definitely have their time and place in our post-pandemic future. They can be particularly useful to avoid delays, reduce costs and to ensure that a mediation goes ahead. They can also contribute to a successful resolution by allowing a minor party to dial in or to involve the person who has the authority to provide settlement discussions. We just need to be careful that hybrid medications are utilised for the right reasons and not simply because it is more convenient to dial in or a party is busy and has other work they want to do behind the scenes.
When conducting hybrid mediations, it’s also important to ensure that you choose the right mediator. Mediators need to tailor their energy, body language and attitude to the style of mediation they are conducting, so the hybrid mediator needs to be skilled at being both an in-person mediator and an expert in conducting AVL mediations all at once. Hybrid mediators need to be able to quickly and easily transition between the two and alter their energy, body language and attitude quickly throughout the mediation.
If you would like to discuss the skills and approach that I bring to any mediation, whether it be in-person, online or hybrid, please contact me on 0412 048 456 or by email on jsomerville@r3resolutions.com.au.