By: Jared Lee and Andressa Bortolin
This article focuses on the benefits that arise from online mediation.
Seven months after the outbreak of the COVID-19 pandemic, many mediations have been conducted online. While some mediators have been mediating online since before the pandemic, many mediators have only begun their online practice in the past few months. Now that online mediation has become normalized, how have mediators handled the shift? How does in-person mediation differ from online mediation and what have mediators done to capitalize on those differences to excel in virtual mediations? What is the future of online dispute resolution (ODR) and virtual mediation? This series of articles seeks to answer those questions and more through the results of a series of interviews with over a dozen virtual mediation and Zoom Certified mediators, article and organization research, and information gathered from the ABA Dispute Resolution Section’s Tech Expo.
Experienced mediators from a wide array of backgrounds have contributed their input to this article on how their mediation practice has changed as a result of moving to online mediation. Online mediation will refer to the use of online video conferencing as the primary mode of communication during the mediation. The video conferencing platform most widely used by mediators that were interviewed is Zoom. This article focuses on the benefits of performing mediations online remotely as opposed to mediating in-person. This article aims to not only focus on how mediators could benefit from using online mediation but also how parties could benefit and even how the process and communication in a mediation can be improved. There were numerous benefits of online mediation mentioned by the mediators. These benefits are broken down into five main categories including; locational benefits, new opportunities and accessibility, process and communication improvements, increased productivity, and emotional benefits.
The first and most apparent benefits of online mediation derive from holding the mediation in separate and remote locations as opposed to physically meeting up for the mediation. 100% of mediators interviewed had brought up reduced travel as a benefit resulting from online mediation. By holding mediations virtually, parties and mediators alike are able to save money on travel expenses such as gas, parking, flights, and accommodations. Generally, the further each individual is from each other, the greater the savings gained from holding mediations virtually. Moreover, mediators and participants alike are able to save time by meeting remotely. Many larger in-person mediation cases have had clients, attorneys, and representatives set aside a full week to travel to and conduct an in-person mediation. Even local two-hour in-person mediations could take a sizable portion of a day to drive, fight traffic, park the car, and find the office location. Online mediation offers greater accessibility to mediation by allowing participants to join the mediation from anywhere that has a quiet secure environment with a good internet connection.
The accessibility of online mediation has particularly impacted cases where agent involvement, such as insurance representatives, is required. Many insurance companies have their claim departments out-of-state. Bill Molfetta, a frequent mediator of insurance coverage cases, states that “if the case is under $100,000, [insurance companies] do not want to send an insurance adjuster to travel in-person to another state.” In these types of cases, the insurance company’s attorney at the mediation would need to call the insurance adjuster to relay information between the adjuster and everyone else. Mr. Molfetta goes on to say that “now the adjusters are participating due to being able to Zoom wherever they are at.” In cases involving insurance adjusters, the use of online mediation can greatly change the dynamics of the mediation. All of the decision-makers of the parties are now able to participate in the mediation process. Whereas the insurance adjuster may have only given their positions and monetary offers prior to the use of online mediation due to inadequate communication channels, adjusters can now engage in the dialogue and attempt to resolve underlying issues or interests. Furthermore, the nature of online communication platforms, such as Zoom, dispels the communication inequalities that arise when one party is at the mediation in-person and the insurance adjuster is relaying information through phone calls.
Not only does online mediation lessen the travel requirements when going to and from mediation, but also within the mediation itself. Multiple mediators stated how beneficial it was that the movement between rooms during caucus is instantaneous when virtual. The immediate switching of rooms saves increments of time and helps create a more streamlined and efficient mediation.
New Opportunities and Accessibility
Additionally, the remote aspect of online mediation opens the doors to new possibilities in the mediation field by potentially expanding individual mediator practices. As veteran mediator Barry Ross observes: “As a result of COVID-19 and the expansion of virtual meeting platforms, previous constraints on travel and physical closeness have been dissolved. The former arbitrary borders and limited paradigms of human interaction no longer exist. These new circumstances have ushered in an era of remote meeting with mediations being conducted from anywhere in the world. But with new paradigms comes a demand for new skills to be developed. So, while the means of human interface has changed, the quality of communication must remain as effective and as clear as in any in-person mediation.” Already, mediators have held online mediations where the parties were in two different states, the attorney was in another, and the mediator was in a fourth. Mediators may no longer have a locational boundary for their mediations and can expand their practice to a much wider area. Likewise, parties could have a greater pool of mediators to choose from if they choose an online format. The benefits of expanding mediation practices may be continually felt throughout the future of the mediation field.
Process and Communication Improvements
Being the facilitator of communication is an essential role of the mediator. It is clear that the communication process changes with the use of online video conferencing platforms as the main medium of communication. Mediators have found that online mediation has improved the communication process by giving more control to the mediator and by increasing the awareness of other participants’ reactions as well their own.
Mediators have found that the virtual format provides mediators with the ability to mute or separate people. These tools can be crucial when individuals need time to think or cool off and can prevent parties from making detrimental actions. In addition, video conferencing platforms give the control of the screen to the host (typically the mediator) and the mediator can then control what appears on the participant’s screen. Mediator Dr. Lenton Aikins appreciates the control and states that “all you can see is what I want you to see.” Whether it is sharing screens, whiteboards, or managing breakout rooms, online mediation provides mediators with additional tools to control the process.
Most video conferencing platforms such as Zoom or RingCentral allows you to see the videos of all of the participants at the same time. While one individual is speaking, it is easier to gauge the response and reactions of other participants while still staying focused on the speaker and actively listening to them. Being able to read more of the reactions of the participants gives mediators a greater understanding of the group dynamics and could provide insights on what actions mediators should take. In addition to reading the reactions of other participants, some mediators have found it useful to see their own faces on the screen and see how others are viewing them. Mediators noticed how expressive their face and body language are or are not when speaking and how their reactions when listening. By viewing themselves, mediators can better control how they use body language and facial expressions to effectively communicate with other participants.
One unexpected benefit of online mediation that multiple mediators brought up was the increased productivity associated with having the mediation from your own home or office. When taking the time to hold a mediation in-person, both mediators and parties had an opportunity cost of not being able to work on other projects, cases, or businesses. In-person mediations often required the participants to take a day or even a week to dedicate to mediating a case. With online mediation, parties are able to continuously work on material unrelated to the mediation case during times when the mediator meets in caucus with the opposing party or on breaks. When being interviewed, unprompted, 27% of mediators brought up that they also found themselves being more productive by working on other cases in breaks, and when the parties’ attorneys met privately with their clients. Clients, attorneys, and mediators have all found that online mediation has provided an opportunity to complete more work in the natural breaks of the mediation process.
One concern that may arise from multitasking during mediation is the ability of the parties to remain focused on the mediation. If parties are concentrating on other work or cases, it could make parties less engaged and provide distractions that could undermine the communication process. However, mediator Barry Appell has addressed this question. Although Appell has frequently noticed that individuals work on separate projects throughout the mediation, Appell has not noticed any large detractions of attention or focus. Instead, Appell has noted that “when [parties] come back on, they are typically respective of their time and refocus on the mediation.” In general, the mediators interviewed did not find that the mediation process was greatly inhibited by multitasking or other work. However, in order to ensure that individuals are not distracted during a mediation, mediators could set up ground rules for keeping parties focused and should be prepared to intervene when needed if the parties are not fully engaged.
It is worth noting that the shift to working on separate projects more during mediation is not entirely attributable to online mediation itself. Rather, the COVID-19 pandemic has changed the work culture across the world to become more virtual. As a result, it has become much easier and more manageable to complete work tasks remotely. Even if mediations could be conducted more frequently in-person today, it is likely that mediators and parties would still complete work on their laptops or mobile devices during caucus or breaks. Due to the online work culture, increased working during mediations may be a more permanent change as a result of the pandemic, even when in-person mediations resume.
Overall, mediators have found that both the parties and themselves have found online mediation to be more conducive to getting more work done during natural pauses or breaks throughout the mediation. The increased productivity lowers the opportunity cost for parties to mediate. The degree to which online mediation leads to increased productivity highly depends on the style of the mediator. Mediators that heavily use caucus throughout their mediation may find that parties have more time to concentrate on other work. In contrast, mediators that consistently use joint sessions may not find the time to work on the side.
Aside from the monetary, time, and communication benefits associated with online mediation, there are numerous emotional and mental upsides as well. Traveling to an in-person mediation can often be a stressful ordeal. After fighting traffic, searching for the location, and finding parking, people can be understandably upset, frazzled, or high strung. Conflicts are already distressing situations, and mediators can benefit from individuals starting off more relaxed, at ease, and comfortable. In online mediation, participants often do not need to travel anywhere and can join the mediation from their home or nearby office. Avoiding travel can help start the mediation without being stressful and can provide a comfortable environment for both parties and the mediator.
In certain types of mediations such as family, employment, or wrongful death mediation, the physical separation of the parties can have a much greater effect on the comfortability and safety of the participants. Mediator, Susan Guthrie, goes deeper into the psychology of highly stressful mediations, explaining, “when people in conflict are in the same room, the amygdala makes your body release cortisol, stress hormones.” These stress hormones are natural physiological reactions that can be released on greater or lesser levels depending on the individual and the situation at hand. However, online mediation reduces the release of those hormones. Guthrie goes on to say that “online, you don’t have the same release, you may have some, but not in a degree you would have in person.” The physical separation from potentially emotionally triggering individuals and the comfort in a home environment can improve the emotional climate in the mediation. Guthrie mentions that the benefits of less stressful environments can include participants thinking more clearly, being more reasonable, increased emotional regulation, and better decision-making abilities.
Long time online mediator, Mark Lemke, adds to this, saying how the screen acts as a physical barrier. This barrier can make a vital difference in the safety and comfortability in mediations where a victim faces an alleged assailant. Instead of confronting an alleged assailant, victims can be in the comfort of their house and distanced from perceived threats or intimidation. In highly emotional, stressful, or even threatening cases, online mediation can provide strong emotional benefits that could lead to a quicker, safer, and more peaceful communication process.
As online mediation continues to develop, and an increasing number of online mediations occur, the importance of capitalizing on the benefits of online mediation only grows. Not all of the listed benefits are universally gained by all mediators. Rather, the broad spectrum of mediation types may magnify or lessen how beneficial various aspects of virtual mediation can be. While the physical distance may greatly increase the comfort and safety of the parties in highly emotional and personal cases such as in family mediations, it may not have a pronounced effect on the safety of construction disputes. Furthermore, the individual mediation styles of each mediator change the extent to which the mediator or parties may benefit from a virtual process. For example, mediators that tend to go into caucus for a majority of their mediation may find that their parties and their own productivity increases as opposed to mediators that only stay in joint session.
That being said, there are a number of widely agreed-upon benefits of virtual mediation that mediators can take advantage of. As the technology and process of online mediation continue to develop, it is important that mediators seek to expand the benefits that emerge from the online process. Expanding these benefits will not only lead to increased resolution rates and more satisfied parties but will push the mediation field into a higher performing sector of dispute resolution.
Thank you so much to the Mediation Center of Los Angeles and the following mediators and dispute resolution professionals who have contributed time, knowledge, and wisdom to make this article possible: Dr. Lenton Aikins, Barry Appell, James Cameron, David Ernst, Mark Lemke, Stephen Marcus, William Molfetta, Michael Narvid, Alan Petlak, Barry Ross, Wean Khing Wong, Jennifer Winestone, and Susan Guthrie.
About the Authors:
Jared Lee is a mediator, facilitator, and dispute resolution specialist based out of California. Jared has a Masters of Dispute Resolution from Pepperdine’s Straus Institute of Dispute Resolution and is currently working with the Mediation Center of Los Angeles. He also is a volunteer mediator for the Center for Conflict Resolution.
Andressa Bortolin Patto is a Brazilian attorney, with an LLM degree specializing in Dispute Resolution, at Pepperdine University. Andressa has worked as a mediator from the Center for Conflict Resolution, and currently works with the Mediation Center of Los Angeles.