All you need to know is – there is No Mo Fo Mo
Everything prior to 2019 B.C. (Before Corona) was a rehearsal; we are now living in the real digital age. As a species, we have adapted brilliantly to the limited mobility challenge – attending business meetings, weddings, condolence meets, examinations, fitness classes, doctor appointments, etc., from the comforts of our screens. Therefore, it isn’t surprising to see so many technology-shy people logging on to online platforms to amicably resolve personal, professional or commercial disputes, via mediation.
There is No Mo-Fo-Mo (No More Fear Of Mediating Online) – our generation has taken the plunge! Mediating out of the physical context simply means moving the dialogue from a physical face-to-face setting of tables and chairs to a virtual (audio/video calls) space or an online (texting or emails) space. Agreed, Mediation in an online / virtual setting requires an enhanced level of training, awareness and experience from mediators and mediation service providers, who have the responsibility to ensure the quality of their service. However, let us not complicate it for the user. Sitting opposite the screen is no rocket-science, and there is no enhanced sophistication of the digital world that the user cannot easily grasp and master.
Why does it make sense?
The trend of mediating on an online / virtual platform is here to stay beyond the pandemic. So, why it makes sense for users to mediate on an online or virtual platform?
Users can choose a time that works best within their daily routine of office work hours, home chores, and responsibilities to elderly parents, children, pets, etc. This allows users to plan a productive day around the mediation session. Users can also work with the mediator to design short productive sessions instead of long, tiring face-to-face sessions, which often lead to decision-fatigue.
Users get to negotiate their dispute from the comforts of their study table or sofa set in the living room. Familiarity and comfort makes users feel safe and willing to express their interests openly. This is helpful when users prefer not sitting opposite people they dislike. The aversion could be a personality clash or even related to mental / emotional harassment. I have noticed people behaving differently when they are communicating from relaxed environs to otherwise claustrophobic settings, which may consider neutral, just because the physical space is neutral. Power imbalances are not neutralised by neutral venues; for some, the other person’s physical presence is itself intimidating and doesn’t permit honest conversations. The virtual world of mediation takes away this limitation and helps users create their own comfort.
Users can avoid travelling for hours in the busy city traffic to get to a physical setting, saving on costs, time and health. In terms of inter-city travel, users also save up on accommodation costs and time. There are no jurisdictional limitations in mediation, which makes the process accessible to users scattered across the globe, who can participate despite varied time-zones. There are a lot of cases where the distant, often ignored, stakeholders to the dispute are immobile and cannot participate in physical meetings, therefore stalling dispute settlements or negotiation deals. Immobility doesn’t need to be an excuse anymore – even bed-ridden people can now have their voice heard.
With time and energy saved on working from your study rather than the office, many mediators are able to free up time and mental space to accommodate more than one mediation in a day, making them more accessible. Using online platforms, the entire intake process is paperless & signature-less – where users simply have to click their way through a few customized document templates to start a mediation. With the help of technology, users can start mediating within hours.
Not everyone has the time and money to pursue litigation, some users can’t afford to even send or respond to a legal notice – which often leads them to ignore their disputes. At CAMP, the average cost of pursuing mediation is 1/10th of litigation for the same case. This is substantiated by the fact that the average lifespan of a mediation case is 1-3 sessions (approx. 10-15 hours) – compare that to 10-12 years for a civil court case to reach some finality, albeit an uncertain and non-participative conclusion. There is no guarantee that every mediation ends in a settlement; but, users have an opportunity to reach out, via a neutral institute, to the other side and attempt to settle. Non- settlement does not prevent users from returning to mediation at a later stage when there is more clarity, or even negotiating a deal among themselves without the help of a mediator.
What are the major concerns?
The pending disputes of the yesteryears are not going away, but more sophisticated, novel ones will take birth. A recent survey by the Independent Mediators UK confirmed many aspects of mediating online, including people’s willingness to experiment with a virtual setting. Interestingly, around 82% users said they would try mediation online, even if they hadn’t tried it before; while 54% vouched for this mode of communication even if they could resume face-to-face meetings.
India doesn’t have such statistics yet. From my interactions with clients and lawyers, I gather that some aspects continue to bother the user. Here are a few:
Firstly, it’s important classify online and virtual communications. Online communications follow asynchronous modes such as exchange of emails, transfer of documents, messages and text-based chats; while virtual communications include synchronous modes such as audio and video calls. There is a lot written about platforms not being safe, and therefore, many firms such as CAMP have partnered with trusted international technology talents – CREK ODR – to create safe and trusted spaces for both, online and virtual communications. The Mediators also guide the parties with the do’s and don’ts of communicating via technology. For detailed coaching, Mediate.com has published an elaborate education tool on mediating in the online / virtual world.
There is no better way to win over paranoia than experiencing the truth. Mediators who make themselves available and approachable to give the parties a trial round of what it will look / feel like in a real mediation are more likely to have confident parties committed to dialogue and settle. The mediator factors in the smallest of elements – such as dress code, lighting, microphone tests, camera angles – that can leave users flustered.
Some lawyers find it difficult to convince their clients of the legal position or negotiation strategy they must engage to get the best deal in a mediation setting. William Ury’s most trusted strategy of ‘go to the balcony’ is a challenge during an impasse in the online / virtual world, where most lawyers end up calling their clients on a private line, when they go astray from the mutually-agreed plan of action. Yes, breakout rooms are our solution to the virtual world, but does it perfectly substitute a physical coffee break or a quick walk to the smoke room? There are instances where clients have issues trusting their lawyers and even mediators, because they are skeptical about what’s going on behind the scenes in the non-physical world, especially when their lawyers or mediators begin to engage with reality-testing exercises, even in a private setting. Many lawyers complain that their clients begin questioning their loyalty when advised to go against what was originally planned. Users will take time getting used to breakout rooms, until then the only other alternative is briefly stepping aside from the platform (where the problem is being addressed) for a private phone call with the lawyer or mediator.
On a side note, mediators always have a plan B if technology fails – you cannot afford to keep the user stranded. Part of the technology failure protocol is to keep the contact numbers of all participants handy for a quick distress call. It is also important to confirm with the parties that they are aware of the different participants, representatives on both sides, so that the presence of a particular participant / legal representative doesn’t overwhelm the other side. Mediators won’t allow any last-minute access to the platform, until both sides have mutually accepted the changes to the list of participants.
There are a lot of users who would prefer not being in front of a camera as it makes them uncomfortable and self-conscious about how they look or sound to the other side. Some people thrive in these new settings, wherein they make sure they have found a safe corner, away from any distraction and disturbance, and take great interest in preparing for the occasion; while others find it cumbersome and intrusive. These ‘screen-shy’ users find virtual platforms more intimate than face-to-face settings, where much of their minor facial gestures, hand movements and sitting posture was drowned by other distractions in the room. Now, even the slightest ‘smirk’ or ‘sigh’ serve as non-verbal communication for the other side. Mediators are respectful of this user concern and clarify that they can keep their videos on mute and stick to only audio calls, as per their convenience, if necessary.
Mediation continues to remain a voluntary process even in an online / virtual world, which of course has many users thinking that the other side will shut off the screen the moment his or her demands are not met. These are valid concerns. There are no signs of packing briefcases, restlessness in the seats or threats of ‘This mediation isn’t working out for me’, before the parties walk out of the door. Now, a party can escape an impasse by click of a button. Mediators strategically use breaks and break-out rooms to cut the tension and only bring users together to a joint conference room when they seem to have arrived at a common ground. Mediators can provide for soothing music in the waiting room or even the chat rooms or breakout rooms while taking a break from conversations.
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