In book after book that I read about mediation, there is so much attention paid to the “environment” in which the mediation takes place. I myself, in mediations, pay a lot of attention to the environment, including going so far as to buy at my own expense, live cut flowers, and anything I can do, to make the ambience of the room more conducive to agreement. In the process of the last 5 years of mediation, which includes over 700 cases involving 3000+ hours of face to face time, and another several hundred cases including the facilitation of the World Trade Center discussion on line, following the face to face session in the Javits Convention Center in New York City and several hundred mediations for eBay/SquareTrade and several dozen divorce mediations, On-Line (ODR), I have tried to apply this environmental factor in all cases.
The concept of “Virtual Intimate Privacy” is a creation of my own, and I first introduced the concept in my article “Face To Face vs. On-Line Facilitation: What To Put At The World Trade Center Site?” in October 2002. In this article, I would like to expand upon the concept, and elaborate how it can be used to handle and facilitate the most intransigent mediations.
The Mediation Environment
The concept of creating the most conducive environment is covered in almost every basic mediation book that has ever been written. The use of bright colors, proper HVAC, flowers, and bright, comfortable lighting are almost second nature to most mediators that have been doing this job for several years. But what if we take this to the extreme?
Imagining that I were an actual party in a mediation, rather than a mediator, I asked myself, “What would be the most comfortable environment I could be in, if I were a party to a mediation?” It did not take me very long to come up with the answer to that question. I would want to be in my space, in an environment of my control, where I feel totally at home or at ease.
Continuing this extrapolation and playing it out to the full extreme, I thought to myself, “In fact, the most comfortable place in the whole world for me to mediate would be in my home office, with the music on and a cup of coffee at my side, in my own chair, in my own room.”
Ah, one might say, this is an impossible situation, but is it really an impossible situation?
The Concept of “Virtual Intimate Privacy”
Almost every experienced mediator has encountered a situation, probably dozens of situations, when in caucus, a party becomes so comfortable, so relaxed and so “safe” that amazing things start coming out of their mouths. I often realize this, when parties spontaneously start discussing their sex lives or any other highly intimate information that would not normally be told to a stranger. But by this time, the mediator is no longer a stranger to the party, because a very high level of rapport has been developed between the party and the mediator.
When a party enters this state, they are in a state of “Virtual Intimate Privacy.” They are living within their own mind, and they are willing to take the mediator with them. Perhaps the best everyday example of this state that people would be familiar with or understand is the metaphor of lying on the psychiatrist’s couch. The idea here is quite the same, to get the party into a state where his or her mind can wander within itself and put loose ends together. And at the same time, the party is verbalizing this to the mediator, expressing the mental pathways that they are traveling down and in most cases, searching, seeking, trying to be understood, while also trying to grasp at a solution, a resolution to the conflict at hand, and the mediator is a party to this mental brainstorming in the party’s mind. Thus the mediator and the party take a deep trip inside the feelings and perceptions of the party.
This state is the most conducive state that a mediator can induce. And when in this state, parties are very open to suggestions that might make sense to them, after they process them in their mind during this free mental brainstorming session. The opportunity is precious to a mediator, and should never be squandered.
Inducing A State Of Virtual Intimate Privacy
Now that the state is understood and explained, the mediator needs to know how to induce the state to create and take advantage of this particularly conducive perspective within the party. And there are many ways, but the best two factors are the rapport that the mediator builds and the environment that the party finds themselves in. This technique would allow the conflation of the above two concepts.
If the mediator were to be able to create a physical environment that would imitate the party’s most comfortable environment, this should be the best environment to induce this state. And when I come to that conclusion, then I ask myself, “How can I imitate that environment, or do I even have to?”
This brings us back to the original question that I asked myself about the environment, and came to the following conclusion as noted above:
“Ah, one might say, this is an impossible situation, but is it really an impossible situation?”
How could I get the party into the most comfortable environment of his/her own preference? I could let them mediate in that environment. I could do the mediation on line. In fact, that might enhance the situation even more, in the following ways:
1) As noted by Katsch & Rifkin in their book, “ODR: Resolving Conflicts In Cyberspace” (copyright 2001, publisher Jossey/Bass) this situation would allow all participants, the mediator and the parties to compress time and space.
2) It changes the dynamic, so that an immediate face to face response is not called for from the other party or the mediator. It allows the other participants to carefully read the comment and then carefully craft their response. (Example of this is seen starkly in the CyberWeek On Line Conference put on by UMASS, Amhearst where there is a mediation competition.)
3) Third, because people are not in an unfamiliar room, facing each other at a table, it is significantly easier to avoid emotional conflict and much easier to achieve “Virtual Private Intimacy” and thus agreement to a resolution in mediation.
In Conclusion: ODR & “Virtual Intimate Privacy” Go Hand In Hand
I can therefore conclude, that for reasons mentioned above, On Line Dispute Resolution is not only the wave of the future in mediation, due to the time and space compression concept, but in addition, due to the Doctrine of Virtual Intimate Privacy. ODR holds the key for the future and improvement in settlement rate for mediators. In addition, ODR offers the perfect alternative to face to face mediation in situations such as divorce mediation with restraining orders or any high conflict dispute. Parties never have to come together, mediators do not risk explosive and dangerous situations, and parties are much more able to resolve their differences, if not in the same room with one another.
The factors circumscribed by the confluence of ODR and VIP (Virtual Intimate Privacy) are the advantages that replace the loss of the mediator’s and other participants’ feedback from body language and facial expression. Mediators should envision ODR and VIP as a technique that replaces “face to face” with “hand in hand.” While many mediators have an immediate visceral negative reaction to the entire concept of ODR, this is only because of an overdependence on visual feedback, or a fear, that their skills in written expression are not up to the task. Ultimately however, if 99% of mediations were held using ODR, it would certainly create efficiency, efficacy and I believe also, a higher settlement rate and an increase in party satisfaction out of the process. All mediators should consider adding ODR skills to their current repertoire and ‘mediation tool kit’ because the concepts lead to better long term results.
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