So many things have shifted since the Spring of 2020 and happily, in a positive direction, the tide is turning once again. Everything slowed down last year and then shifted. One of those shifts was redirecting in-person mediation to online sessions. There are a handful of online platforms to choose from and I was excited and grateful to have these options. Lo and behold I came to discover that online mediation is not a replacement for the experience of the personal interaction that leads to successful mediation.
The online platforms are amazing, and I feel confident knowing that anyone reading this article has been in more Zoom meetings, GoToMeetings, Google Meet and so on at least one time, if not plenty more, in the past year. At times it was fun, not only for business but for pleasure. My old college friends would meet via Zoom once a month for happy hour. It was nice to see everyone’s beautiful face and catch up with each other. But for mediation, it was different, and I had this discussion with an attorney while we were waiting for all parties to arrive in a Zoom mediation session.
We said “hello” and exchanged the usual niceties and then he said to me “Jill, I don’t like these online mediations, they just don’t work as well.” He is not the first attorney expressing the same sentiment to me. It is refreshing to hear this because they are conveying the real essence of what mediation should be; more personal, interactive, and face-to-face, not a face in a small box on a screen where the parties appear to be ‘in person’ yet are not, and it just is not the same.
The goal of a skilled mediator is to bring the parties together and open a line of communication. While this is happening, the mediator, as an observer, watches body language and listens to voice inflection and tone of communication. The skilled mediator can feel the energy in a room and harness that energy to assist in facilitating a fruitful negotiation.
In all the years I have been mediating, I have been successful at creating an interactive experience for all parties. Even if we caucused for most of the session, the conversation kept going and agreements were met. Yet in this past year, while online, I ran into a hiccup. A mediation session ended in one hour because it is easier for a party to end a mediation by clicking a red button with the words “end session” than it is for me to caucus and spend the necessary amount of time to speak with them and ask the question Why impasse or no agreement? Can we work on some of the talking points and allow the time to feel out their position and present appropriate alternatives; to give them pause, time to reconsider and ‘stay in the room’. It is like dealing with an online troll who feels safe hiding behind the keyboard.
In the case of the one-hour mediation, I safely met a Board in their clubhouse. I brought my laptop and socially distanced from them. The attorney for the property owner and their people were all successfully in the meeting. Unfortunately, the Board members had difficulty connecting to the Zoom meeting, no audio, no video. I then had to position and socially distance the Board members at the end of the table where I was seated and adjust my laptop so we could all be seen. Frankly speaking, the attorney for the other side was angry at the delay and came into the meeting hot. I knew within moments of the attorney’s opening statement that this session was not going to be successful, and I felt horrible for the Board members who came with zeal and a desire to communicate. It did not end well, and I could not comfortably take my fee.
On a positive note, mediating virtually saves the parties my travel fees and that of others. Conversely, it robs them of my best efforts due to circumstances beyond my control. Fortunately, many residents in the State of Florida have become vaccinated and are willing to start mediating in person, the tide shifting once again.
So, what has your virtual experience been like?