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Live or virtual? Is the Future Here to Stay? Born of necessity. Driven by ease.

Over the past year, we have been forced to learn to use virtual technologies. Many have come to appreciate, even love, the ease, convenience, flexibility, time and cost savings associated with meetings, hearings, mediations, arbitrations and conferences conducted via video conferencing technologies such as Zoom, Teams and others. Indeed, the advantages are many, including:

  1. Ease of scheduling and gaining participation of busy people in a far-flung locales

  2. Cheaper

  3. Efficient

  4. Saves time, travel costs

  5. No Commuting

  6. Working in the comfort of own home or office

  7. Safety in a pandemic, safety and reduced risk from personal aggression

  8. Great tools, sharing screen, private conference rooms, whiteboards for drawing, group drafting of documents, muting and turning video cameras on and off.

There seems to be a growing expectation that our future interactions, negotiations, mediations and arbitrations will largely be conducted virtually. If that is so, what might we lose? In person interactions, discussions and negotiations can be described as a rich or full medium for human engagement. When we are physically present and together, we have the full range of communication, words, eye contact, body language and tone of voice. We have a full view of faces, gestures, reactions and responses. There is greater synchronicity in the human interaction with the opportunity to touch, interact, relate informally and to move around. We can share human experiences more easily, we can share food, treats, offer tea or coffee. In such a rich medium, it is easier to develop a sense of commonality or “We”ness.

In contrast, with virtual interactions, a leaner medium for human engagement, there are potential shortcomings. They include:

  1. A sense of distance and detachment. Participants are viewed in separate visual boxes. People appear to be less engaged

  2. Less party commitment, investment and focus can make it seem easier to withdraw from difficult discussions and negotiations

  3. The virtual environment reinforces a sense of separation and allows more group think, demonizing of others and negative attribution biases

  4. Sense of “Other”ness

  5. Shorter and reduced range of communication, nods, gestures, facial expressions, eye communications, sounds

  6. Head & shoulders body language of view allows less complete observation of communication cues

  7. Sequential communications with some video lag

  8. Multi-tasking & distractions

  9. Less eye contact. 

There are other challenges presented by the virtual environment. We are learning to watch out for “zoom fatigue”. With videoconferencing, being on camera can create tension. The sense that everyone is looking at you and the worry that you have to look good can be uncomfortable. There is also the risk of multi-sensory brain overload. There is much more to see, listen to, process, evaluate and assess. There are multiple video boxes to monitor. There is also a growing culture of people having short attention spans. With all that’s going on, multitasking and distractions, people can feel mental and physical exhaustion.

For negotiations and mediations, the use of virtual technologies and videoconferencing has proven to be an amazing, effective and productive tool. We may need to be sensitive to identifying the kinds of situations and disputes that can be productively and effectively conducted virtually and those that may be better handled in person. I, for one, hope that we don’t lose the human touch and succumb to the temptation of having all of our communications and interactions done on a videoconferencing platform. The pleasure and richness of in-person human interaction can be critically important in the development of trust, establishment of rapport and building of relationships. As a mediator, my sense is that where ongoing relationships are important, such as in business, partnership, family and divorce conflicts, the human touch and dynamic may be more effectively conducted, managed and handled directly and in person. For those of you who might be interested, there is an insightful discussion of the differences in consideration associated with negotiations and interactions conducted in person or by written text, email, telephone and videoconferencing. The author, Noah Ebner, wrote a chapter entitled “The Human Touch in ODR: Trust, Empathy, and Social Intuition in Online Negotiation and Mediation” for an upcoming book. If you can’t find it by googling the author and title, feel free to contact me for a copy.

There are things that we, as negotiators and mediators, can do to try to minimize the disadvantages associated with utilizing virtual technologies. Before engaging in negotiations and before conducting mediated discussions, negotiators and mediators can contact, meet and connect with participants. Establishing a human connection and sharing of commonalities is fundamentally important for positive human interactions. If interactions are limited to videoconferencing, it is still possible to chat, talk story and to draw connections. We can do things to maintain a sense of authenticity and to humanize our interactions. Consider selecting a comfortable or thematic virtual screen for your videoconferencing. Pictures, music and stuff visible in your video background and a participants video background can be the source of discussion and an opportunity to share commonalities. You can even have a virtual handshake or a fist bump with starburst on screen. You can unmask yourself and be human, personable, present and real. Not everyone is comfortable utilizing video conference technologies. So one thing that can be done is to arrange for a “tech check” to make sure that people can connect and have a steady and adequate Wi-Fi connection. You can help participants, have good sound and video and look good, comfortable and competent in an online environment.

During video conference negotiations and mediations, it is also good practice to check in with each other frequently to make sure people are comfortable. People should consider asking more clarifying questions to confirm that communications are heard and understood. Taking frequent and regular breaks is also helpful. If possible, doing something physical or fun can be helpful. Having an opportunity to stretch, go outside, look at the clouds, rainbows, and horizon entities in the breaths can be relaxing and helpful.


Lou Chang

Louis Chang received his Bachelors of Arts (Phi Beta Kappa) from the University of Hawaii, and J.D. from the University of California, Berkeley, Boalt Hall and is recognized by his peers as one of Hawaii’s best lawyers in the field of alternative dispute resolution. Mr. Chang has more than 30… MORE >

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