What Is Your Mediation Background?

The “digitization of mediation,” now on steroids with the Covid-19 pandemic, has resulted in dramatic changes and new opportunities for mediators and the mediation field.  A part of this includes coming to appreciate new meanings being given to old words.

After thirty years of incremental digital development in the world of mediation, the Covid-19 pandemic literally took away mediators’ ability to meet face-to-face with participants.  It was as if the rug was pulled out from beneath the mediation field.  At least that is the way it initially felt.

For many mediators, our office is half behavioral laboratory and half artist studio.  The arrangement of our office, including furniture, plants, a flip chart or white board, purposefully selected art, lighting and every other aspect are all strategic for many mediators, intended to best support clients reaching agreement.  There are few accidents in face-to-face mediation offices.  We think through the qualities of our waiting room, how we greet participants and their attorneys, how we show them back to the meeting room, whether we serve beverages and, if so, what beverages.  And one does not want to overlook the value of quality snacks for critical agreement-reaching energy.

Now, all of this has changed.  It is as if “brick and mortar” mediation has been outlawed.  How I wish I would have come up with a training exercise where a mediator and participants are simply not able to physically meet!   What a great exercise that would have been.  As it turns out, the master mediation trainer in the sky has decided to see how our entire field would address this challenge, all at one time, with precious little warning.

One of our first realizations as we move into this scary new world is that, over 3 decades, a good part of the mediation process has already “moved online.”  As these digital changes have been incremental over a long period, we have perhaps not paid as much attention to these changes as warranted.

For example, “back in the day,” we used to advertise in something called “the Yellow Pages.”  When contacted by prospective clients, we would send a wad of hard copy introductory materials to participants by “snail mail,”  paying particular attention to the quality of our paper, packaging and labeling.  We would design, print, pay for, and mail slick brochures to create a best impression among colleagues and referral sources, only to throw brochures out by the hundreds anytime our office address, practice group members or phone number changed.  We were hesitant to leave messages on “answering machines,” not sure who might listen.  We were thrilled with the advent of word processing and with each new version of WordPerfect and, in time, Word.  Our deliverable was a final, polished mediated settlement agreement, which, upon signing, would become the participants’ Magna Carta moving forward.

How this has all changed!  Now, before participants ever contact us, they have not only found us online, they have fully vetted us online!  Anything “introductory” now needs to be at our capable website, now increasingly including a short video of us introducing ourself and how we approach our mediation work.  Contact is now online, scheduling is online, payment is online, correspondence is online, document exchange is online, draft settlements are online, attorney review is online, agreements are signed online, documents are filed with the court online, satisfaction surveys are done online.  In fact, the only piece of mediation not already online prior to Covid-19 was the “heavy lifting” face-to-face meetings during which we would strategically weave our mediation magic to create face-to-face agreement, commonly during the closing minutes of an exhausting scheduled mediation meeting.

And now, how are we to do our “heavy lifting” with participants when we cannot even meet face-to-face?  The short answer, of course, is, “Let’s meet on Zoom.”  Recognizing that there are also a number of other capable online video platforms, and to over-simplify, Zoom has become the new “meeting.”  Zoom is how participants now expect to “meet.” Our dim memories of face-to-face physical meetings are now seemingly a thing of the past.  The very meaning of the word “meeting” has seemingly been hijacked.

The meaning of other words also seem to be changing.  The other day, I had a mediation participant comment that, “she really liked my background.”  While I am thinking she is commenting on my education, many years of experience, writing, training and the like, she then says, “it is a really nice soothing balance, not too complex, nor too plain, just right to have me “feel at home.”  It was only then that I realized that she was not talking about me at all, but about my Zoom background.  The word “background” has now been hijacked as well.

Since then, I have paid rather close attention to people’s backgrounds online (the Zoom kind) and have come to realize that there is an emerging industry both of attractive (and not) Zoom backgrounds, and also of “room raters” online.  Half chuckling, but then pausing, I came to appreciate that one’s online virtual mediation office (one’s “background”) is in fact a really BIG deal for mediators (and for mediation participants).  Whatever creative and strategic energy we previously put into our expensive brick and mortar offices is now properly focused upon one’s virtual office background.

And this is perhaps only the beginning. Why settle for only a single look for your virtual office?  It might be that we adjust our intake questionnaire to inquire about participants’ “favorite meeting environments.”  And, while I have not seen it yet, there is no rule that says a mediator can only use a single office background per case.  Perhaps we come up with mediation beginning, middle and end backgrounds?  Maybe a background with a rainbow, and perhaps a pot of gold at the end?

One of the most creative backgrounds that I have seen was offered by a colleague mid-way through his mediation.  Right at the time that he was introducing the critical core issue for participant discussion, the mediator changed his Zoom background to literally show “an elephant in the room.”  While not particularly subtle, the change in background was certainly a powerful intervention assisting participants to focus.

And so, I would like to finally suggest that it is my impression that mediation has in fact changed forever.  Every mediation case is now an “online mediation case.”  In time, there will likely again develop “a face-to-face mediation option,” but the marketplace assumption will now generally be that we should first take advantage of all available (affordable and convenient) online capacities.  Online mediation is, in short, here to stay.  My sense is that this is more based upon newly developed participant expectations than mediator preference.

In short, our lives, and mediation, have, as far as I can tell, been changed forever.  And it is time, I sense, for each of us individually to bring our old mediation “backgrounds,” and just about every other aspect of our historic mediation practice, into a new “foreground” for close examination.  Our willingness to re-invent our mediation practices to most capably respond to both the Covid-19 pandemic and to more distant future challenges is, I suggest, the mediation industry’s new “elephant in the room.”

Ultimately, my read is that the Covid-19 pandemic may turn out to be the event that brings mediation, more accurately “online mediation,” to the masses.  The online environment offers unprecedented opportunities for participant information and education, offers multiple modalities for choreographed real time and asynchronous communication, and, ultimately, offers people access to quality resolution opportunities on a level and at an affordable cost not previously imagined.


James Melamed, J.D.

Jim Melamed co-founded Mediate.com in 1996 along with John Helie and served as CEO of Mediate.com through June 2020 (25 years).  Jim is currently Board Chair and General Counsel for Resourceful Internet Solutions, Inc. (RIS), home to Mediate.com, Arbitrate.com, ODR.com and other leading dispute resolution sites. During Jim's tenure, Mediate.com… MORE >

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