Mediating online before the pandemic seemed like a farfetched idea, and an unpopular one at that. In fact, there were many arguments against this type of legal practice. The COVID-19 pandemic however, not only changed the legal industry as a whole through leveraging technology, but also paved the way for Alternative Dispute Resolution to become a more sought after solution to ongoing litigation. That, in turn, changed the way we mediate.
While coming up with arguments against virtual mediations are easy, there are also advantages to consider. In a short time, online and video mediation has become the new normal, and continues to gain traction in the now evolving legal system.
One of the arguments for mediating virtually, as opposed to in-person, is that many people found they can mediate without traveling hundreds of miles to resolve a conflict. In fact, remote meetings (not to mention remote ADR Services) can save organizations millions of dollars in travel expenses, save hours on travel, bring environmental costs down, and ensure claims adjusters participate directly.
If you understand the dynamics of virtual mediations, you can leverage them in your favor and get the best possible outcome. If you compare video conferencing software to the telephone, the difference is astounding. An average business phone call lasts five minutes. A short meeting can certainly be efficient, but can you imagine creating a bond with a stranger over the telephone? If visual cues and nuances are missing, it is very hard to build trust, especially if you can't see the room, let alone see who is in it.
According to Aimee Drolet in her study on conflict resolution, face-to-face negotiators in a simulated conflict were more likely to reach a settlement than those standing side-by-side (unable to see each another). That may be because face-to-face nonverbal gestures (such as eye contact or arm crossing) and paraverbal cues (tone, pitch) lead to a better connection, increased cooperation, more win-win results, and a more even distribution of pie slicing. Women, in particular, tend to be more successful in collaborative negotiations when they have visual contact such as in video based negotiations. Women also tend to do better in virtual negotiations due to the ease of being more assertive and not having to demonstrate gender bias behavior.
HOW TO WIN AT AN ONLINE MEDIATION
While there are problems associated with virtual legal proceedings, there are many advantages to online versus in-person mediations.
Here are some ways you can win at your next mediation:
Schedule pre-mediation calls. While always useful between mediator and counsel, they are especially beneficial when the client participates in the call with the mediator. Client participation here enables early trust and rapport building between the mediator and the client and may save valuable time during the mediation itself. Such calls will increase the client’s confidence in the mediator, and in the online mediation process.
Prior to the mediation, practice with the technology. Many glitches can be avoided with practice and negotiation momentum can be disrupted during mediation if a party is for a time unable to participate. In addition to facility with applicable technology, details like a solid wi-fi connection should not be overlooked.
At the beginning of the mediation build Rapport. If you have not spoken to counsel, client, or mediator or had not had a pre-mediation phone call, this is especially important. Start with small talk, discuss topics that are not relevant to the mediation such as pets, hobbies, or the parties' location. Finding common ground prior to negotiation is paramount.
Eye contact. Establish eye contact by looking into your computer camera instead of looking at the other person on your computer screen. This establishes trust. Be aware that everything that surrounds you will communicate something about you so make sure you are in a quiet, well lit room, with minimal distraction.
Don’t multitask. Checking or sending emails or text messages will make you a worse negotiator and insult those on the call. It is recommended to turn your computer and phone alerts off throughout the duration of the mediation. Remember that everyone can notice when a person is distracted and the idea that humans can multi-task is a myth.
When in doubt, ask what is recommended. At Pacific ADR, our excellent customer service and a positive experience is what we strive for. Our team will be happy to hear from you. We maintain an enviable settlement rate in part because of attention to detail and the knowledge that for many, including attorneys, mediation is a stressful experience. Let us help you manage the stress.
Follow up immediately summarizing the mediation. If a settlement is reached, summarize verbally the terms of settlement at mediation. Discuss who is responsible for drafting the CR2A agreement. Parties should draft, print, review and sign it at mediation. If no settlement is reached, the mediator will follow up with the parties in order to explore further possibilities for settlement.
Video negotiations have a surprising advantage over life face-to-face negotiations: with increased distance between parties, there is an increase in reaching a mutually agreed upon settlement. I.e., more win-win is created. The reason: Distance creates a big-picture orientation.
The pandemic will eventually pass, but the effects of the pandemic won’t. Alternative Dispute Resolution will not return to "in-person" for the foreseeable future. Smart negotiators are leveraging the present problem to establish future solutions. Building your video mediation skills will pay off. Trust us.