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Getting it Done! Overcoming Challenges in Virtual Mediation

by Christina L. Scott, J.D.

Mediating virtually during our global pandemic continues to serve as the safest substitute for in-person cases. Mediating virtually, however, can sometimes pose significant challenges for all parties involved. Some of these challenges include platform fatigue, the difficulty of “reading” people on the screen, and participant disconnection.

Ask anyone who frequently does virtual mediation and they’ll agree that mediating online is far more draining than in-person cases. The amount of energy it takes to stay engaged and focused with a “screen” is astounding. The question is, why? The answer lies in the very skills and factors that are important in the mediation process itself. Part of a mediator’s job involves reading the participant’s overall body language, facial expressions, tone of voice, listening to what is not being said, and measuring the room temperature. The mediator’s response to these non-verbal cues can often be critical in the mediation process.

Equally important in the virtual process is the full engagement of the participant’s, their communication skills, and their ability to convey credibility. Participants are sometimes disconnected from the online process due to the platform itself, various sources of external stimuli, and a general lack of empathy. For example, driving a vehicle or attempting to do work tasks while mediating, are a recipe for disaster. Distractions like these disconnect participants from the process and make it more difficult for them to receive and process key information. Now, add to the distractions, everyone’s challenge of precise verbal communication and trust building, and one can easily understand how draining the virtual process can be!

Despite these challenges, virtual mediation can be very effective if counsel and the mediator are willing to go the extra mile to get it done. Below are seven tips that can assist in mitigating these challenges.

1. Increase your interactions with the mediator prior to the mediation. Both parties can schedule a pre-mediation session with the mediator to begin building rapport and confidence.

2. Keep the web camera on during the mediation. Turning off the camera or refusing to use the camera while mediating conveys disinterest and insincerity. If a party is ill or not feeling well, consider rescheduling the case for another time when they are well enough to use the camera.

3. Refrain from multi-tasking while engaged in the session and reduce on-screen stimuli from other sources (such as e-mail and calendar notifications)

4. Reduce platform fatigue by taking regular breaks from the screen. Participants can generally do this while the mediator is in caucus with the other side.

5. Come with an open mind and attitude to settle. Just like in-person cases, being determined that you will have it your way is a recipe for failure! Mediation is a give and take, and both sides cannot have their way on all issues.

6. Be flexible. Mediator and counsel must be willing to adapt their approach and style when mediating remotely.

7. Get a good night’s rest. Sounds old fashioned but being well rested and energized can make all the difference.

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