Yesterday I was involved in a commercial mediation in which the mediator, the parties and their lawyers were in five separate locations in New Zealand and Australia. Each party was physically in a different location from its lawyers. Each team of lawyers sat together in its office. The mediation was conducted over the internet.
How did it work? Overall, pretty well. Here are a few additional tips and wrinkles which emerge.
So what does it look like?
As those who have used Zoom will know, each person or group in the meeting is visible in a thumbnail live video window at the side of the screen. The app picks up who is speaking at any given moment and – assuming there is only one person speaking – makes that person’s video the main video on the screen. When that person stops speaking and someone else starts speaking, the former speaker reverts to a thumbnail video and the new speaker’s video takes over the main part of the screen.
This feels reasonably close to a conversation in a room in which all participants are physically present.
You can set up a ‘main room’ and a ‘break out room’ (or rooms).
All invited participants can join or leave the main room at will.
The mediator can invite a party or parties to enter a break-out room. The mediator can then either join those people in the break-out room or leave them alone in that room.
For example, if a party and that party’s lawyers are in different physical locations, the mediator can invite both the party and their lawyers into the break-out room for them to have a private conversation; and the mediator can join them in that private room.
A party can share a document on screen, either on a full-screen or half-screen/part-screen basis. This can be useful if making presentations to the other parties or referring to evidence or caselaw.
Zoom also has a ‘whiteboard’ facility.
Establish the host and set-up. Someone (preferably, but not necessarily, the mediator) needs to set up and host the Zoom or equivalent meeting. The host can email an invitation to each participant with a link for them to connect to the meeting.
Have a dry-run. The start of a mediation is an important moment for the mediator to establish a mood of co-operation and optimism. Frustrating hold-ups due to technical glitches do not assist in that aim. A dry-run of the zoom or other set-up the day before the mediation is very useful, especially for less technologically savvy participants. All participants log in simultaneously to the zoom set-up and check they can use the technology, see and be seen, hear and be heard. This helps familiarise participants with the technology, and reduces the risk of wasting time and positive energy at the start of the mediation overcoming technical snags.
Check webcam’s field of view is sufficient. It is worthwhile each participant or group checking that the webcam(s) in their physical room are so that all the participants in that physical room are visible to the other participants. A laptop’s webcam will generally show only the person sitting at the laptop, although it could be placed further away to show more people if necessary.
Establish an alternative communication channel. If a person is not in a relevant ‘room’ (whether due to a pit-stop, a coffee break, or another reason) it is important to have an alternative means of contacting them. Text-messaging is one effective method. No doubt others would also work (including email, WhatsApp or even good old-fashioned phone), if the recipient will instantly receive them. This obviously requires appropriate sharing of contact details. This can be done at or (preferably) before the start of the mediation.
Establish a protocol for entering a ‘room’. Zoom does not, as far as I am aware, have a ‘knock’ facility: a person entering a ‘room’ does so un-announced, so those inside the room do not become aware of them entering until they have just entered. This could potentially cause difficulty if a person were to enter a room during a confidential conversation. It is suggested that the mediator (or proactive lawyers/parties) establish a clear protocol for everyone to use on entering a room, to preserve trust and confidentiality. For example, requesting everyone to text the other party a few seconds before entering; or that no-one enters a room until invited to do so by the mediator by text message. An additional safeguard is to request anyone entering a room immediately to wave and announce themselves: both a visual and an oral indication are helpful to increase the immediacy of notification and a sense of transparency and co-operation.
Practice using the whiteboard. This applies more to the mediator rather than to the parties. Zoom’s ‘whiteboard’ facility needs a bit of prior practice to work well. Otherwise a white-board-using mediator may feel they are mediating with one arm tied behind their back. Mediators who prefer handwriting to typing may wish to explore (in advance) using a touch-screen and touch-screen pen on Zoom or other relevant platform.
Maintain awareness of which participants are in the ‘room’. Some care is required if a party switches off their video function, particularly if their microphone is also muted. This may not be problematic, depending on the circumstances. But it is important that at all times everyone ‘present’ in a ‘room’ knows who is in the room. Zoom helpfully indicates the number of participants in a room at the bottom of the screen. It is worthwhile keeping a beady eye on this.
Allow extra time. It can take more time inviting people back into a ‘room’, or moving to a different ‘room’, than opening a door and walking into the next room. Particularly if multiple ‘room-moves’ will be required, it may be worth starting an internet-mediation earlier.
It is hoped that the tips above will help internet-mediations to run smoothly. A few additional points:
Technological glitches. There is a range of potential technological glitches which may arise and interfere with the process. Having an IT professional available to the host, where possible, may assist in resolving any such glitches, particularly when setting up and at the start of the mediation.
Slow connections. Depending on the speed of the internet connections, a party may ‘freeze’ on others’ screens, interrupting both their video and audio , due to insufficient internet band-width. This may not be immediately apparent, but can lead to frustrating repetition being required once the connection is re-established. Switching to audio only could assist with this, if internet connections are not fast enough for video.
Confidentiality: Ensuring clarity over who is present. It is important to safeguard both the confidentiality of the process and the participants’ confidence in that confidentiality. This can present more of a challenge with internet-mediation than physical-presence mediation. In an internet-mediation it would be possible for someone to be physically present in a party’s room, outside the field of view of the webcam, hidden from everyone else. In many civil disputes, there will be a sufficient level of trust for all participants to be expected to act honestly and with integrity, and to avoid this. But that level of trust may not always be present. But he mediator may wish to explore additional precautions to safeguard the integrity of the process. It may be worth considering modifying the mediation agreement and/or signed confidentiality agreements, for example by requiring the parties at or before the mediation starts:
a. to provide signed statements confirming the identities of all participants to the mediation;
b. to confirm that they are in a confidential space where what is said in the mediation cannot be overheard by anyone who is not a participant.
Confidentiality: Other issues. In an internet-mediation, it would be relatively easy, compared with a physical-presence mediation, for a party to record the mediation without detection, leading to a risk of breach of confidentiality. There may be other confidentiality risks associated with internet-mediation as opposed to physical-presence mediation which deserve further thought. Reviewing pre-mediation confidentiality agreements through that lens may be a useful additional precaution.
Limited sensual interaction compared with physical presence. Clearly, while the platforms now available are far more advanced even than five years ago, they are a pale reflection of being physically present with other people. Facial expressions and body-language are far harder to observe. You can’t easily a see how a silent listener is reacting to a speaker. The visual cues we continually use in physically-present conversation are far less clear. So it may be anticipated that internet-mediation may have a somewhat lower success-rate than physical-presence mediation, particularly in disputes with a high emotional or interpersonal element.
Internet-mediation may not work in every case. But with good will from the participants and careful management, it can work well. As with anything, practice will improve familiarity with the process; and a can-do, optimistic attitude can work wonders.
Lastly, this article is meant to be helpful, but not exhaustive. We are all on a learning curve, and I’m sure the points above will merit further thought and development. I welcome comments, feedback and suggestions.