Clients can participate from a space of their choosing with ease
BY KATHLEEN WAREHAM
Remote. Virtual. Online. Distant.
Nothing in these words conjures a personal connection. And yet, we’ve been experiencing over the past year the necessity of remote, online, virtual, and distant meetings and experiences. Weddings, graduations, birthday gatherings, happy hours, business meetings, court hearings and trials, and mediations are continuing, providing legal, business, and social connection with physical distancing.
As one who highly values the in-person connection in mediation, I’ve been surprised by the ability to still have personal, lively, and effective contact and communication via mediation by videoconference. I haven’t had an in-person mediation since last March. As my clients and I have adapted, we are finding a settlement rate as high with mediations by videoconference as with in-person, and an overall experience that works quite well, with most clients saying they don’t want to go back to the “old normal.” The “new normal” that evolves for in-person mediations, even with successful vaccines, will likely still require, for some time, physical distancing, masks, a limited number of participants in a room, and separation by plexiglass—an experience likely to be far less personal than videoconferencing.
With videoconferencing, verbal and nonverbal communication take place with ease on screens. Participants are each in a space they choose. They don’t face the uncomfortable circumstance of running into someone they don’t want to see or don’t know. Participants are assured password-protected, confidential, private conversations with completely separate virtual “rooms.” The mediator moves seamlessly between these virtual rooms. Additional breakout meetings can easily be set up on the spot. Email and screen-sharing allow participants to review documents, including settlement agreements, before, during, and after the mediation.
Mediation by videoconference is a stretch of our experience. But, as said by distinguished designer Sara Little Turnball, who founded and led the Process of Change: Laboratory for Innovation and Design at the Stanford Graduate School of Business, “If you don’t stretch, you won’t know where the edge is.”
As we’ve stretched to mediate during a global pandemic, with stay-at-home orders in place, we’ve discovered a new edge, and many advantages. In fact, many people are finding they are more at ease with mediation by videoconference. The commute is a breeze; geographical barriers go away; scheduling can be more flexible and customized to the needs of the case. I’m finding people are quite comfortable in their own spaces. Some choose to use a virtual background, perhaps to maintain a separation from their home spaces or to protect their privacy. Others choose spaces in their home where artwork or bookshelves show some aspect of their personality, and where they are at ease. A cat walks across a desk in front of the screen; children’s voices playing outside or doing school work are heard in the background; a baby wakes from a nap. These everyday human experiences don’t get in the way of the conversations; they enhance them.
Even with the added stress and multitasking that goes hand in hand with most people’s working-at-home experience, we still get the job done, in the same time frame. Even as lawyers and our clients face enormous challenges and pressures—economic, technological, and emotional—mediations by videoconference provide an ease that I didn’t always find in the intensity of the “old normal.” I’m finding that most lawyers display an increased patience and focus when their clients are at ease. Perhaps clients are more at ease because they are in the comfort of their own homes, rather than in a formal meeting room. Perhaps clients appreciate the level of attention and focus they receive in these “remote” mediations, with a format that recognizes and respects their worklife balance.
In the midst of a global pandemic, mediation is a service people need that is safe, effective, kind, and respectful.
I’m also finding a shared connection between clients and their counsel, and between opposing parties: an extra bit of kindness. Interactions often begin with “how are you?” and “how is your family?” In spite of the increased stress and uncertainty in the world at large, there is more patience for the needs of individuals. The universal primacy of health and well-being is a strong connector that can be experienced in mediation despite difference and dispute.
It is more important now than ever to mediate in a manner that works, is safe, and feels comfortable. Litigants, risk managers, and claims representatives, who always face uncertainty forecasting a judicial outcome, now face courthouse closures and delays, and increased anxiety, grief, and uncertainty in the world at large and personally. A mediation by videoconference allows disputes to be resolved despite the numerous limitations imposed by our public and personal health needs, and provides a low-stress, effective route to resolution. Rather than finding it a barrier to settlement, mediation participants are finding the videoconference format an effective and satisfying way to mediate.
There will, of course, be a time in the future when live, face-to-face mediation resumes, but until that time, we who are new to these technologies (“digital immigrants”) are learning we can have “face-to-face” connection on screens, and the generation that was raised in this digital world (“digital natives”) are teaching that virtual connections can feel personal and effective.11 Prensky, Marc (October 2001). “Digital Natives, Digital Immigrants.” On the Horizon. 9 (5): 1–6. doi:10.1108/10748120110424816. As a profession, we are adapting. It’s been the “end of the world as we know it” but we are “fine.”22 R.E.M. “It’s the End of the World As We Know It” (1987). We work in a service industry that is weathering the global pandemic. I’m thankful, in the midst of uncertainty and fear, that mediators are able to continue providing a service people need in a way that is safe, effective, kind, and respectful.
1. Prensky, Marc (October 2001). “Digital Natives, Digital Immigrants.” On the Horizon. 9 (5): 1–6. doi:10.1108/10748120110424816.
2. R.E.M. “It’s the End of the World As We Know It” (1987).