Mediation Bytes by Karin Hobbs
Should you mediate by Skype? Perhaps. There are benefits and warnings.
When a recent case was scheduled and one client would not be present in person, an attorney called me to discuss the client’s participation by telephone. After a short discussion, we decided to have the client (let’s call her Meg) participate via Skype.
Neither attorney had experience with Skype. Both clients were experienced Skype users. After some initial reluctance, all agreed to Meg’s Skype presence for mediation. Still on the day of mediation, concerns surfaced.
We started early. As a frequent user of Skype, I was comfortable. I conducted telephone mediation as an appellate mediator for several years. Thus, I was conscious of the differences the telephone could add and subtract. With telephone mediation, you have to shift your focus. Listening to tone of voice is exceptionally important. Deep sighs and tempo are important as are pace and pauses. My first course on mediation in 1997 was from Judy Mares-Dixon and Bernard Mayer at CDR Associates in Boulder, Colorado. Judy was blind and demonstrated that when you cannot see, your focus alters and you pay attention to other details. Judy encouraged us to try to heighten the use of all of our senses.
And, as we know, watching body language is also important. It accounts for 50-65% of our communication. While negotiating in-person, noticing body language happens out of the corner of your eye if you are trained. With Skype, you must focus more on the images on the computer, intentionally noticing the clues. Turning the computer so that the client can see body language of counsel and/or the mediator is also key. One benefit of a computer is that unhelpful body language, exasperated sighs, and/or difficult conversations can be edited by simply turning the screen. For example, if an attorney has a difficult message to convey, he can gather is thoughts, take a deep breath and relay the response in a more controlled manner.
My role as the mediator was tuned into new ways of helping lawyer and client through their negotiation process. And, Skype was helpful for their difficult negotiation. They were not trapped in the same room. They could take brief breaks, eat a snack or read their mail during the breaks.
There were other benefits as well. Meg was more relaxed. Due to the issues in the case, she did not want to be physically present. Whether or not her fears were justified, Skype alleviated her concerns. As the mediator, I also thought about my tone of voice, the occasional problem of voices that break due to connectivity problems, and the ways those problems may be more difficult to control.
I also had an interesting experience when Meg muted us as she conferred with a support person. As we watched her body language, it was clear from her crossed arms and angry expression, she was becoming frustrated or angry. Perhaps she thought since we couldn’t hear, we would not know. Out of courtesy and deference to her desire for privacy, and knowing that she may not understand what I could see, I felt it was most appropriate to end the call and send her a chat message. My message stated, “We decided to hang up for now. Give us a call when you are ready.”
As the case was nearing settlement, I sent the proposed settlement to Meg in a file on Skype. She was able to print the document, ask questions, sign the final version, scan it and send the signed agreement back. We did run into technical problems on several occasions. I would mediate via Skype again, but I recommend it only with a trained professional mediator who can work with the subtle communications differences and with a mediator who has technical Skype experience.
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