The Covid-19 pandemic has created an opportunity for the growing field of online mediation. Because online mediation allows everyone to participate remotely, cases can proceed even with mandatory stay-at-home directives.
When I first heard about online mediation services, I had concerns about confidentiality, focus, and clear non-verbal communication. Now that I mediate online, I am comfortable that online mediation preserves the mediation process, and, in some cases, provides benefits that the in-person process cannot.
The Mechanics of Online Mediation
I use the Zoom.us videoconferencing platform for online mediation. Before the scheduled mediation, all participants take a few minutes to create a free account and download the Zoom app on their desktop, smartphone, or tablet.
Five minutes before the scheduled session, the participants click on a link that the mediator sent them upon confirmation of the mediation. This hyperlink sends the participants to a virtual waiting room, and Zoom notifies the mediator when each person joins. Once everyone has arrived, the mediator places the parties and their lawyers into pre-assigned, private rooms: the virtual equivalent of having a receptionist usher the parties into their own conference room. All of the members of a particular room can see and hear each other; no telephone is required.
No one can secretly enter the room. Once someone joins, everyone can see who is in the private room.
When ready, the mediator can move the participants into a joint session. There, all of the parties have the ability to share their screens with the other participants. The screen share allows the presenter the opportunity to show a slide show, photographs, video, or other documents relevant to the case. While the parties see the shared screen, they continue to view images of the other participants, which allows the parties to watch each other’s reactions. Unlike an in-person mediation, the participants see their own image; this helps them monitor their own body language and reaction to the process.
Throughout the mediation, the mediator maintains control of who sees one another, thus protecting confidentiality of the process.
If the parties reach a settlement, the lawyers work collaboratively on a settlement agreement through a shared screen process. Once the agreement is completed, the mediator sends the agreement to all of the participants with the ability to sign with DocuSign. DocuSign does not require the signers to have an account, and everyone immediately gets a secure copy of the fully executed agreement.
Online Mediation Maintains Protection of the Mediation Process
Privacy and Confidentiality. By statute, mediation is completely confidential. Nothing that the parties discuss during mediation can be used outside the mediation. The mediator cannot be subpoenaed or testify about what happened. Additionally, anything that the parties discuss with the mediator during a separate caucus (where the parties are separated into different rooms) can be shared with anyone else without permission. Online Mediation also protects privacy and confidentiality. As discussed above, the Zoom platform provides for separate caucus rooms. Once participants enter a room, their image shows on the screen, and there is no way to eavesdrop or listen without the participants’ knowledge.
The Zoom platform has a feature that allows for the recording of the proceedings; however, the mediator can turn off this feature when scheduling the mediation. Nothing stops a participant from recording the proceeding independently (such as a screen/audio record or recording on a separate device); however, that is true during an in-person mediation. The rules for the mediation in both forums prohibit the recording of the mediation.
Non-Verbal Communication. Because a majority of human communication is non-verbal, conducting a mediation where the parties are not sitting across from one another requires adaptation and practice. The audio feature keeps tonality, emphasis, and inflection intact. For body language, I emphasize the need to angle the camera so that each person’s face is fully visible, and ask that everyone concentrate on making gestures that can be seen.
Focus on the Mediation. Mediation provides an opportunity for the participants to carve out time to focus on the dispute and to dedicate their attention on the problem and the potential solutions. If the parties are allowed to stay in their home or office, what prevents them from splitting their attention away from the mediation? This issue must be addressed when scheduling the mediation and when signing the agreement to mediate. My agreement to mediate explains that the participants are agreeing to treat the online mediation the same way they would treat any other commitment. Further, just because the participants aren’t in the same physical location, the video feature exposes anyone who is working on something else.
Benefits of Online Mediation
Health of Participants. No one can transmit a virus to each other when they’re not together!
Efficiency. Online Mediation allows all parties to participate from anywhere they have access to the internet and a computer, tablet, or smartphone. No one has to fight traffic. Without the need to travel, the mediation takes much less time than it would if it had been conducted in person.
Comfort. Mediation can be a high anxiety event. Allowing parties to participate in a comfortable environment promotes the productive expression of emotion.
Cost Savings. Online mediation saves airfare, hotel, and other travel expenses; this leaves more money to use for settlement.
Ease of Information Sharing. The screen sharing feature in online mediation creates a powerful way to present and share information, and also to create and collaborate on documents. The encrypted platform also provides a “share document” feature that allows any of the participants to securely send documents to any other participant, and to carefully control who gets the document.
The Green Factor. As more people and corporations focus on the environment, the ability to save people from traveling to a mediation serves as a motivation for on-line mediation.