If prior to 2020 someone had asked me if I zoom, I would have thought they were asking me about Zumba classes or about the 1970s children’s television show- to which my response would have been a hearty, “not only do I zoom but I zooma zoooma zooma zoom!” Fifty years later, Zoom has become ubiquitous and for me, as a mediator, part of the fabric of my mediation practice.
As we come out of the pandemic (hopefully!) and life starts to revert back to a sense of normalcy, I have been thinking a lot about the use of Zoom, whether it will continue and whether I will continue to use it in my practice. The answer for me is an unequivocal yes. What follows are a few of my observations about the use of Zoom in mediation – some negative, but all in all mostly positive.
First, let me address it from the clients’ perspective. A recent case brought to the forefront for me one of the most dramatic benefits of this technology. In addition to my private mediation practice, I am director of a mediation clinic that is a collaboration between New England University School of Law, Hampden Probate and Family Court in Springfield MA and the Collaborative Resolutions Group (CRG). More details about this program can be found here.
For our purposes, it is sufficient to know that the clinic has cases referred to us by the Hampden Probate cand Family Court. We provide an initial screening and intake where CRG gathers information about the parties before the mediation commences. Although the court mandates the clients to attend the screening, they are free to end their participation following the screening. This almost never happens. In a recent case, a couple with a long history of court involvement, allegations of domestic violence was ordered to attend. The presenting issue was child support. They had been apart for many years and had older children together including one minor child. The minor child had no contact with her father. The mother who had made the above allegations indicated in the intake that while she would not have felt comfortable being in the same room with her former partner, she did feel comfortable mediating via zoom. With some hesitation (due to the allegations made during the intake), we went forward with the mediation via Zoom. To my surprise, we were able to help them reach an agreement that avoided a trial.
The conclusion is probably obvious. This mediation would never have happened without the ability to conduct it via Zoom. There are many high conflict mediations that fall into this category. So, one benefit of Zoom to some clients is that it allows them to address difficult issues without being in the same room with the other party. The Zoom platform provides physical safety as well as, in many cases, psychological and emotional safety. There would obviously have to be other protections in place to ensure safety beyond the mediation session. However, there is no question that for some people the option of mediating remotely opens up a possibility that otherwise would not be available.
The other clear benefits for clients is convenience. It saves clients the driving time to and from the office and in general involves less transaction time. It also gives clients the option of being in the same Zoom room or different rooms.
In a recent case (again involving the clinic described above) the mom was Zooming while waiting at a bus stop to go to work. Her 2 year old was in a playground nearby. The dad, was supposed to pick up the child so that she could go to work. We paused the Zoom mediation while he took the 10 minutes to pick up their son and resumed the mediation after he returned home (and before her bus arrived). This never could have happened had we been in person.
Another benefit is that Zoom gives client the ability to shut their screen and/or mute themselves during emotionally intense interactions. I see people do that all the time. It somehow seems less of a big deal than someone needing a break during in-person mediations and physically walking out of the mediation room.
The only downside I see of Zoom sessions for clients is the intangible quality of in-person meetings. There is no question that in-person meetings are different. That “intangible quality” is usually a good thing. But not always, sometimes it is downright uncomfortable.
People say that it is harder to read cues. I have not found that. Maybe if the quality of the video is bad, it is harder to see facial expressions. All in all though, I have found it easier to see facial expressions because you are usually looking at both people directly in front of you and at the same time. In person, you are shifting back and forth between the parties and are rarely looking at both of them at the same time.
For mediation practitioners, there are significant benefits that Zoom has created. First, similar to clients, the convenience factor cannot be underestimated. It gives us the ability to work from home or office or both.
While with in-person mediations, I always had to have a significant buffer between sessions to make sure clients did not run into one another, that is not really a problem with Zoom mediation. I still need to have some buffer but not the same as in person when one of the concerns was to make sure different clients did not run into one another in the waiting room.
Zoom has expanded my geography. While pre-Zoom, my geographical reach was pretty limited to Western Massachusetts, now it extends to the whole state. Pre-pandemic if I did have clients from outside of my general geographical area, clients would often have to drive over an hour to get to me (or pay for my time to drive to them). As a result of using Zoom, I now have clients from the Berkshires, Boston, the Islands and throughout Massachusetts.
Pre-pandemic I had a large screen in my office and when necessary would project agreements on the screen an I would make changes in real-time. It worked but was a bit clunky. The ability to share screens on Zoom makes that option even easier and more seamless. It allows clients to share their screen if necessary or for me to work on an agreement with them in real-time. I can also have two screens while on Zoom which sometimes allows me to work on an agreement while also maybe looking something up for them on the second screen.
I have come up with a way to sign certain documents on Zoom which is convenient and in most instances has been accepted by the court. That is, there is an “annotate” feature on Zoom which allows one to sign a document on the shared screen. For the clinic I described above, when clients reach an agreement, I have them sign the document using the annotate feature, I then take a screenshot of the signature page which not only includes their signatures but has a snapshot their faces on the side. There is no question about the authenticity of the signature since the screenshot has both their signature and a snapshot of them proving they were there when the document was signed.
Of course there have been many jokes about the Zoom attire- nice shirt or even jacket above and shorts or pajama bottoms below. While I do not go to that extreme, I have transitioned to wearing a nice shirt with jeans or maybe a nice shirt with sweats. The days of the necktie and jackets are gone (except for court of course). I think ultimately it creates a more relaxed atmosphere for the mediator and the clients.
Inclement weather-no problem! It used to be that here in the Northeast, if it snowed, that meant cancellations. That is no longer the case with Zoom. It just means if clients are home with children for a school day they need to make sure their children are occupied and tended to.
The same goes for sick days. While I thought maybe I had some special powers, after three years of skirting it, I recently came down with Covid. I obviously isolated as a result but I was able to work during the isolation period and continued to have mediations via Zoom. I would have otherwise had to have taken two weeks off of work.
Finally, working remotely gives us incredible opportunities for travel. My 30 year old daughter says she will never take a job that is not remote. Who could blame her. In the winters she heads to California for three months. For me, it opens up the possibility of travelling somewhere for a month and working several days of the week remotely or even working every day but being somewhere new.
The downsides to Zoom mediation are few but there are some. I do miss the personal interactions. It is not the same on Zoom. As I said above, it is intangible but no doubt it is different.
You have to be careful to make sure you indicate in your calendar which clients you are meeting in person and which by Zoom. I have had the unfortunate experience of thinking a meeting was on Zoom and deciding to work from home only to realize too late that clients were waiting for me at my office. That only needs to happen once for you to figure out a strategy to avoid a reoccurrence.
The other financial downside of Zoom is that at this point I am almost getting paid exclusively by credit card and that adds a cost. Pre-pandemic I was paid almost exclusively by check. On the other hand, these days, many people (most clients under 40) don’t even have checks.
There are the occasional technical glitches, bad reception, poor audio or video or clients who just cannot seem to get the mechanics of Zoom. But these are the exceptions and we generally make do, including one person being on the mediation by phone if necessary.
While pre-pandemic, even though it existed, if someone had tried to convince me about the benefits of Zoom, I would have likely resisted. It seemed in theory a poor substitute for in person. Having now been doing Zoom mediation for three years, I am sold and will likely keep it as a major part of my practice. When given a choice these days, I find that most clients are still opting for meeting via Zoom. If all goes well and according to plan, I may even have the pleasure of conducing my mediations from ….. Arizona, Hawaii, Alaska and beyond!
Sometimes, the relationships in our lives can become toxic over time. Whether it’s in the relationships we hold with our colleagues, our partners, our family members, or our bosses, toxicity...By Sophie Bishop
Kluwer Mediation Blog and Kluwer Arbitration BlogRaymond Williams, Resources of Hope (published posthumously in 1989), p. 118 I write and will upload this blog on the eve of my departure...By Ian MacDuff