Admittedly, even before the Covid-19 outbreak, the constraint of geographical distance could discourage mediation as a means of dispute resolution. This is unfortunate, since prolonged conflicts can hamstring organisations, causing anxiety, absenteeism and declining performance and productivity.
Mediation, of course, invites feuding parties to discuss their issues in a constructive manner, assisted by a third party mediator. It facilitates sharing perceptions on the disagreements to dispel any misunderstandings and better understand how the conflict arose and escalated. By offering space to release long-suppressed emotions, mediation eases participants’ pressure enough to seek ways to jointly end their dispute.
But is it possible to duly perform mediation tasks remotely using videoconferencing? Absolutely, provided that the mediation is adapted to our new tools at each step of the process.
Step 1: Set the scene
Mediation on a virtual platform has a clear advantage over physical meetings with respect to organisation. There is no need to look for an available meeting room or to worry about meeting dates. A virtual room is available for the participants whenever they wish and mediation can be organised very quickly. Sessions can be shorter but more frequent without disorganising any schedules. The participants will then be able to join from their workplace or from home, with all the comforts they need. For the mediator, if the organisation is also simpler, they will obviously have to master the videoconferencing technology and test it early enough to avoid any problems.
Step 2: Welcome the participants
Welcoming the participants is especially important in virtual mediation because it creates a reconciliatory climate and brings the participants closer to one another. This proximity enables the mediator to finely perceive the emerging mood and adapt the inclusion phase to this perception. Virtual communications may be interpreted as colder than facetoface speech. Physical mediation certainly has an edge over digital in this regard. However, to compensate for this, the mediator can dedicate more time to the presentation of the participants allowing each in turn, including the mediator, to introduce themselves, express their state of mind and get to know each other. Virtual mediation has another slight advantage over face-to-face mediation in that the mediator can see their own image on the screen. This helps to ensure that one’s face and presentation are as welcoming as possible.
Step 3: Validate the discussions framework
When commencing mediation, the mediator should state the rules that everyone shall observe. This ensures that they are understood and accepted. They should cover confidentiality of the discussions, taking breaks, private conversations, conditions for each participant to address the meeting, mediator’s attitude and so on. At this stage, everyone is, in principle, attentive, whether in physically or virtually. Whatever the case, the rules of the game should not change. However, a virtual meeting requires some additions, notably regarding confidentiality by insisting on the strict prohibition on recording the meeting and making sure that no third party is concealed off camera. These points should be specified in the mediation agreement.
Step 4: Progress of the discussions
During mediation, the mediator facilitates the participants’ speaking time and makes sure that everyone listens to the other speakers. In virtual mediation, the lack of a face-to-face presence may help participants to speak more easily. Not having to face an antagonist can help to overcome any purely physical rejection or delays caused by proximity. In face-to-face mediation, participants are fully aware of the other side’s presence. For the mediator, it is obviously easier to reframe the discussions while physically at the center of a debate. Some of the natural moves used by mediators – placing a hand on the table or standing up – cannot be made in a videoconference. To compensate for this, the mediator will have to speak more regularly, ask questions and check the participants’ degree of attention to the others. Mediators may also use text messages to regain control over the debates.
Step 5: Concluding the meeting
Before the end of the meeting give the participants time to express themselves. What was the meeting like for them? What was positive or difficult? What are their expectations for the future? If the mediation is not over, the parties shall arrange the next meeting. In this respect, virtual mediation does not change anything. The mediator shall be able to gather their feelings from the participants about this type of communication in order to make further improvements.
Videoconference mediation has developed quickly due to the pandemic movement restrictions, and should continue to evolve. Remote mediation has several advantages. The absence of physical contact or an imposed place can, in itself, help defuse the conflict. The process is also easier to organise. There are no travel expenses, no transport time and no venues to select. It could thus help make social mediation more accessible. Videoconference requires a few adaptations, but nothing that cannot be overcome. We can safely bet that face-to-face mediation and remote mediation will coexist smoothly in the future.
Lionel Paraire is a pertner at Galion Société d’Avocats, Paris.
Image: Tumisu, Pixabay licence.