Does Online Mediation Create Disadvantages for New Mediators?

No one can doubt that mediators have power and exert influence. Within a session, the mediator’s primary focus is to deconstruct power positions to foster relationships, change minds and guide litigants through the process.  Each mediator uses their “power”, an overarching strategy to choose specific influence tactics, like tools from their toolbox. These tools, when skillfully deployed, get the parties to arrive at an agreeable resolution. To the proficient mediator, the use of these skills is commonplace and second nature. Thus, even though the pandemic was a surprise, experienced mediators, based on the availability, accessibility, and utility of online platforms (live, zoom) were able to resume daily work.  In contrast, given that new mediators lack the requisite skills of their experienced counterparts, it is important to examine what was their experience during this time period. Additionally, it is necessary to consider what skill sets and influence tactics are best suited for mediating online, specifically some that advance and increases a mediator’s authority and power.

In this article, I hope to change the concept of power from being a vague term to a known concept by creating boundaries and parameters around them. To that end, I agree with, and adhere to Shapira’s conceptions regarding the skills mediators deploy within a session as constituting the “sources of their power”. In this context, Shapira’s referent power, the ability of the mediator to exert influence because of shared traits (Shapira, 2009); and environmental manipulation power (e.m.p), the direct control of the setting time constraints thus, both skill sets potentially enlarge a mediator’s authority. All of these traits are essential to understanding how online mediation affects the mediator. This intellectual framework helps to assess how online mediation affects the mediation process, as a whole, and potentially undermines two key tools on a young mediator’s tool belt, namely rapport building and controlling their respective settings.

Rapport and Referent Power  

         According to Shapira (2009), mediators construct referent power as a means to develop rapport with other stakeholders while simultaneously projecting their influence and ideas as worthy of being followed. As a tactic, referent power is simply presenting an image and personal values that are attractive to litigants thereby making them more cooperative to the mediator’s influence (2009). For example, the use of small talk, making jokes, addressing parties by their first name, and even expressing empathy for a party can create “closeness”. Although not entirely dependent on direct contact and non-verbal cues, in-person mediation does heighten the potency of this tactic. According to Shapira, referent power uses feelings and identity to create trust. Ultimately, the mediator leverages any trust created to reduce resistance to influence tactics.

Mediating online should create for most mediators a self-awareness regarding the limitations of influence tactics that are dependent on their mannerisms, non-verbal cues, and other tactics derived from referent power. This underscores the need for self-reflection, a practise many experienced mediators incorporate to ensure optimal performance. For new mediators, without this experience clearly different considerations need to apply.  Unless you’re pacing up and down in your mediation, litigants primarily can only see your facial expressions because a mediator is positioned in front of a webcam. Furthermore, a webcam restricts bodily communication. Therefore, I suggest that the effect is that it reduces a mediator’s referent power.

Referent power for the mediator is the attempt to build rapport, if unsuccessful it can severely reduce how charismatic or domineering a mediator can be within a session.  The loss of in-person contact limits a mediator’s ability to guide the process since litigants haven’t developed any sort of connection or trust with the mediator. This connection persuades a litigant to relax any tendencies of disbelief in the process, in general. In other words, it would be helpful to read and understand the relevant characteristics addressed in the media according to peer reports this would help us to refine the useful mediation characteristics while practicing online because the litigants cannot see your whole body. The loss of rapport with the other parties undermines the mediator’s presence and sense of power.

Environmental Control and Other Considerations

 For Shapira (2009), there are three forms associated with environmental manipulation power (e.m.p), which are controlling the time, physical surroundings, and procedure/process of a mediation, that empower the mediator with a distinct psychological advantage (2009). The ability to affect the environment of another forces the participants to respond to new situations and is potentially an opening for the use of influence tactics. Moreover, even subtle changes in how time is allocated or who talks first enlarge the position of authority enjoyed by the mediator, and thus potentially increase other forms of power. Furthermore, setting the agenda, deciding who speaks first reinforces to all parties that the mediator controls the process. This distinct ability to control all the facets of a mediation empowers the mediator and mitigates the loss of controlling the physical environment.

 Although mediating online does lessen the effectiveness of e.m.p because the mediator cannot directly control their physical surroundings; for the new mediator, there are other viable means to manipulate the environment of litigants.  To use platforms like zoom, the ability to caucus can significantly shape the experience of the litigants by reassuring them that the mediator is in control. This deliberate action helps to bolster other influence tactics in use. In other words, mediators presently can shape and arrange their settings to support the process. Therefore, for the experienced mediator, utilizing online mediation, the loss of a physical setting does not have to detract from organizational requirements a mediator still has to attend to. Clearly the experienced mediator is more able to do so than the novice.

 Both the structures of online mediation and typical in-person mediation still cater to a type of shuttle mediation that suits the conventions of the field.  Whether using breakout rooms or actual adjacent rooms for caucusing the differences between both structures are minimal and probably subject to personal preference. For example, possible differences between the two systems are using platforms to manually move parties into breakout rooms and walking between rooms to guide the process. How the mediator decides to add value to the respective bodies, ideas, and positions is on the mediator. For the mediator adjusting to the technical differences between the two systems might take some time. For many seasoned mediators, their established practice, clout and reputations ensure a smoother transition from in person to online mediation, without the loss of clientele. Here lies the difference between experienced and new mediators in this matter; experienced mediators’ clout and industry relationships serve as a buffer that protects and even absorbs the associated costs and risks of adjusting how they mediate. There is limited protection for newer mediators to practise online because they lack clout, experience, reputation and trust from their potential clients. The lack of these and other qualities reduces employability.  In other words, it is not that online mediation is vastly different from practising in person. For newer or novice mediators, the costs are greater because without established working relationships- tangible human connections, clients- any adoption of a venue that reduces direct human contact creates a scenario where it is less likely to forge rapport with attorneys or participants, and that is dangerous for any mediator.

Conclusion:

Mediating online, at this point is standard practise. As the in person option attempts to reassert itself in the field, the need to reflect on what skill sets, strategies and influence tactics transition easily online is necessary and present, to the benefit of new and experienced mediators alike. Although this paper seems to purport that technological changes – the use of webcams and networking platforms would adversely affect newer mediators, this could be quite the opposite. Younger mediators might feel more comfortable working online. In other words, this is an acknowledgement that other perspectives could inform this discussion.

Yet this acknowledgement doesn’t undermine the litmus test that Shapira’s referent power and e.m.p serve to our understanding as a collective of the effectiveness of some skill sets over others. Here lies the distinction between experienced and inexperienced mediators their ability to adapt to changing stimuli. Constructing a powerful and authoritative presence boils down to the correct deployment of skills to persuade litigants and attorneys alike.

Endnotes:

Shapira, O. (2009) Exploring the Concept of Power in Mediation: Mediators’ Sources of Power and Influence Tactics. Ohio State Journal on Dispute Resolution

With special thanks to Dr. Ally for support and revision.

Philip Graham

Phil Graham is a mediator at the Canadian firm: A Place for Mediation Inc. MORE