Developing an Online Mediation Practice


by Ben Davies

April 2013

Ben Davies

For any mediator used to face-to-face mediation, online mediation requires a modified approach and therefore training to adapt the skills of the mediator to be compatible with an incorporeal digital forum.

Aside from the development of the skills needed to conduct online mediation, the Virtual Mediation Lab (VML) simulations also provide the ability to learn from experience before taking a real online case.  These are my principal observations thus far in my training.

Communication Skills
While mediating via video-link may require a different approach it still allows the mediator to use whichever technique he or she feels comfortable with be it facilitative, transformative or evaluative.  Although it is difficult to notice the most subtle of gestures, it seems quite common that people are so aware of the camera that they almost seem to exaggerate their natural mannerisms for the benefit of the camera.

Making the participants aware of the potential for lag and the need to address each other by name, so they know when they are being spoken to, very much help the process.  One of the limitations of online communication is that due to lag, it is difficult to politely interject when someone is speaking.  It is important to address this at the start of the mediation and ask the participants to have a pen and paper to hand so that they can make a brief note in order to address their concern when it is their turn to speak.  This is a good practice to have in any mediation as it helps the parties’ internal agenda setting, but is essential during an online mediation for reasons of courtesy and order.  This is discussed in further detail in the ground rules section.

Practise for Good Practice  
A good practice is to use Skype and video communication as frequently as possible, whether in a business or personal capacity.  It is a different type of social skill and most people are quite different over Skype to how they come across in person.  Frequent use will help you adapt your communication skills to become more natural over a video-link.

When you start using video conference for the first time, you will likely be quite aware of the camera.  This initial awkwardness will pass very quickly.  It is also important to get to know your hardware.  Using a webcam with an internal microphone allows the mediator to feel more natural than a headset allows; however, a headset gives a more immersive auditory experience with no echoing problems.  If you are conscious of the visual profile of a large headset, there are many discrete headsets available, such as ‘behind the head’ sets which minimise the visual profile.  Wireless headsets can also be of help in this respect as well as allowing greater freedom to move around.

Ground Rules
It is very important to set out some ground rules during the mediator’s opening statement.  There are several key issues the parties need to be made aware of before they get started:

How to address each other 
Because one cannot make subtle eye contact with someone to let them know they are being directly addressed, it is important to change that subtle direction into an overt statement.  Address the parties by name when you wish to address them. 

When asking an open question, it makes sense to ask one party first then ask the other.  Change the order in which this is done so that party B does not start to feel that it is always party A who gets to speak first as this can unconsciously affect the mediator’s perceived neutrality if one party is repeatedly given the first opportunity to respond.

Interruptions 
It is quite common to politely interject during physical negotiations and, although hopefully less common, some people do interrupt in a less than polite manner.

Because of the nature of video communication and the lag it can bring, polite interjections can be misconstrued as impolite interruptions.  The parties must allow the other to speak and it appears almost necessary to adopt the voice procedure used by radio operators such as the ‘over’ expression, or the expression ‘interrogative’ to denote a question.  Of course, such language is wholly inappropriate for mediation, but the need for some voice procedure is clear.  As with any mediation, ask that the parties respect each other’s turn to speak and that mediation only works when all parties have the opportunity to have their say.  However, the parties should be made aware that it is difficult to ‘jump in’ mid-sentence during an online conversation and for that reason if they feel the need to interject, ask that they make a note and come back to that point when the other side finishes.  This will also bring the added bonus of structuring the conversation in a more logical and orderly fashion as the tendency to deviate off topic is reduced and, as mentioned earlier, assists the agenda setting process.

Privacy
It is necessary to include a paragraph in the mediation agreement stating that only those named in the agreement are, for the duration of the mediation, present in the room where the party’s computer is situated.

It should also be agreed that the mediation shall not be directly or indirectly recorded using recording equipment or recording software.  The ease with which a mediation could be recorded is a potential pitfall of online mediation as there is no way to ensure one of the parties is not doing so.  However, the mediator has no more control over the parties’ use of a covert recording device in a conventional mediation (short of frisking the parties) than he or she does during an online session.  Such is the nature of negotiation and there must be an element of faith.  Where full privacy must be assured is during the caucus sessions.  The mediator does have control over this – a point discussed under the ‘technology’ heading below.

These rules must be enshrined in the mediation agreement and it must be understood that breach of these rules shall constitute a breach of the mediation agreement.

Technology
A thorough understanding of the way in which the technology and software work is essential to conduct an effective online mediation.  Most video conference suites, including Skype, allow the sharing of screens and joint collaboration on Word documents.  These tools are invaluable, as is a whiteboard in physical mediations, to frame issues for example.  It also helps the mediator prepare summary notes for the parties in their presence so that they can be actively involved in the plenary process.

It is also extremely important to understand not only how to work the software, but also how the software works – two very different things.  The mediator must have a clear understanding of what the parties are actually seeing, not what they should be seeing.

An online mediator must be aware of privacy issues as discussed in the ground rules.  When the mediator uses the private caucus method, it is the responsibility of the mediator to ensure that the privacy of both parties is guaranteed.  The method preferred by VML is to hang up on the relevant party in order to speak privately with the other.  It is necessary to allow a brief pause to ensure that the party not privy to the caucus is fully disconnected.

If the mediation is using some other software, the mediator must be cautious about using ‘mute’ or ‘block’ functions to keep the non-privy party out of the discussion.  With such functions there is no way to be absolutely certain that the non-privy party is not watching the caucus – this is why the VML method of temporarily removing the non-privy party seems to be the most efficient technique.

Probably the most secure method is to have a product such as ClickMeeting with three password protected rooms set up.  All parties have the password to the joint session room while party A is assigned to room A and party B is assigned room B and are issued passwords accordingly.  This is more complicated than Skype but is quite suitable for long mediations with multiple caucus sessions, using the shuttle method.  Moreover, the ClickMeeting structure replicates the physical layout of a caucus/shuttle method and is therefore ideal for disputants familiar with mediation but sceptical about online mediation.

Poor Connections
Things can go wrong, connections can fail.  The internet is far more reliable than it ever was in the past, but there is still the potential for degradation in the connection and this can be caused by anything from an antivirus program scanning the system to a solar flare.  The mediator must be able to retain control over the virtual environment to enable the parties to communicate effectively.

In my early mediations, I experienced some connection issues and made the mistake of trying to listen though the interference.  This proved fatal as one of the parties felt that, at that particular moment, “the mediation was all over the place”.  The reason for this was that I had a very limited grasp on what was being said and, possibly due to a misguided sense of pride, did not want to admit that I could not understand them and hoped that the connection would resolve itself.

When the connection degrades the proper course of action is to pause the mediation and restart the connection.  This allows the connection to refresh and in most cases will resolve the problem.  Trying to work through a poor connection will make the parties lose faith and confidence not only in the mediator but also the concept of online mediation.  Pausing the mediation to address a connection problem takes courage as you might be worried that the parties will become frustrated if you tell them that the connection needs to be restarted.  Most people will accept this and for those people who do not, their frustration will be transitory.

DSL Packages 
Mediation through Skype and other services ‘hosted locally’ will depend on the performance of the host computer and connection.  In practice, the mediator must be the host, so that he or she has full control over the technical operation of the mediation.  This also means that the mediator must provide the best venue possible.  For conventional mediations that is a comfortable and well lit room with fresh coffee; for online mediations that is a fast connection and a powerful computer.  It is generally advised to have a minimum upload speed of 2mb and at least 8mb download. 

In today’s Internet Service Provider market, astronomically high download speeds are easily attainable, but a prospective online mediator must ask the question “what will my upload speed be?”  Many service providers only provide 1mb upload but include ferociously fast download speeds.  As host, the mediator will be receiving the video and audio feeds from each party and relaying that information to the other(s).  He or she will be the nexus of communication and thus needs to transmit data as quickly as he or she can receive it.  It is also necessary for the mediator’s computer to be able to process that data.  Accordingly, it is advised to have sufficient random access memory (4gb), a dual core processor and, preferably, a dedicated video card.  This will enable the transmission of high definition video allowing the parties to see those subtle facial expressions that were lost in early video communications.

With fibre optic technology finally coming to the UK my company will be investing in a line with a 10mb upload speed.  This will enable us to send documents, pdf files or any other materials pertinent to the mediation without interrupting the flow of high definition video and audio.  In its simplest terms: as fast as possible, please.

Conclusion
During my simulations with VML, as with my conventional mediation training, I was very much aware of the four stages of skill learning:

(1) unconscious incompetence,
(2) conscious incompetence,
(3) conscious competence and
(4) unconscious competence.

I would like to consider myself at stage 3 of this process thanks to VML.  The shift from stage 3 to stage 4 is usually a matter of professional development.  It will be interesting to see the development of the practice requirements of online mediation in the coming years and whether mediators will require accreditation and ‘continuous professional development’ training to conduct online mediation.

I would never have felt comfortable holding a mediation through Skype prior to the commencement of my training with VML.  Now, however, I rely on Skype to enable my practice to reach disputants previously unreachable owing to travel and cost limitations.  Online mediation is not only benefiting the expansion of my practice, but also serving clients who would not otherwise have access to effective dispute resolution.

I am reminded of the dictum of Lord Justice Ward about the necessity of mediation and I wonder how long it will be before a similar quote will help further the cause of online mediation.

“Mediation is a perfectly proper adjunct to litigation. The skills are now well developed. The results are astonishingly good. Try it more often.”


Egan v Motor Services (Bath) Ltd [2008] WLR 1589 (53) – Dictum of The Rt Hon. Lord Justice Ward in a case with legal costs exceeding £100,000 over a £6,000 dispute.




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Biography




Ben Davies studied law at undergraduate level and then went on to train as a barrister.  During litigation training he worked for a pro bono legal advocacy service specialising in large scale environmental cases and occasionally working on smaller civil and family matters.  He foundhimself frequently adopting a collaborative approach, so when he was presented with the opportunity to train as a mediator at the end of law school it seemed to him that mediation lent itself to his preferred style of practice. 

Shortly after law school I set up Nexus Mediation, an independent mediation practice.  We are eager to learn about new innovative approaches to mediation and ADR in general and remain focused on continuous development and research.  We continue to recruit likeminded mediators onto our panel.

I have a deep interest in the study of nonhuman personhood and dispute resolution.  I am currently trying to promote environmental mediation in the UK as a specialist area of practice including the resolution of disputes where public participation is a key factor.



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Website: www.NexusMediation.org

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