We Are All Online Mediators

The modern mediation movement grew up with an operative assumption that: “to mediate, one gets together.”  This most basic of assumptions, that of a face-to-face meeting as the centerpiece of mediation, is worthy of ongoing examination. Surely, online communication offers enhanced opportunities for communication before mediation and greater capacity for follow-through after a meeting. In time, we will surely see more and more mediation discussions taking place online as well.

In offering this commentary, it is not my intention to disrespect face-to-face mediation.  There surely are benefits to getting together, along with high costs and limitations. It is my suggestion only that we cease to romanticize face-to-face mediation communications to the exclusion of other mediation communications, as if other (electronic) communications are not just as valuable to the mediation effort.  I would argue that my ability to put together an informative web site, responsively communicate by email, phone and text, attach drafts for editing and other “cyber skills” are just as critical to mediation success as any technique used “in the room.”  We should not see electronic and face-to-face communications as at odds.  Ideally, the mediator’s capable electronic communications situate him or her to have the greatest likeihood of face-to-face success.

To give us a sense of how quickly things change, most mediators now mail nothing and email everything.  Introductory information and forms are at professional web sites.  Email updates are sent following each face-to-face meeting, commonly attaching an expanding draft agreement.  In my case, I now systematically refer divorcing parents to the online State of Oregon Child Support and Parenting Plan Centers.  Both of these empowering resources are now available 365/24/7 for free. These resources appeared overnight and immediately changed how mediators responsibly mediate these issues.  To not actively refer Oregon divorcing parents to this vital information (presumably by email with links) would be, in my mind, mediator malpractice. Again, all of this happened “overnight.”

Other communication revolutions are taking place before our eyes.  Email, because of its ease, ubiquity and affordability, is now “how business is done.”  A person is now more likely to have an email address than a street address.  Phone numbers used to be to places.  They are now generally to people. Historically, we as mediators would call, or not call, and leave a message, or not, ever wary of the sensitivity of the wrong person hearing our message or even knowing that we had called.  Now, with the proliferation of cell phones, phone numbers have become “personal” and this surely supports a greater capacity to communicate with individuals in mediation. When we call, the recipient also knows our identity (helpful in deciding whether to answer or not).  We might first send a courteous “text” asking, “would this be a good time to talk?”  We might note: “Have just sent you an email with a draft agreement to review.”  Remarkably, we can do all of these things from a device that fits in our pocket.

The combination of functions in smart-phones, combined with cell and broadband access, present participants and mediators with an ever-expanding array of communication options.   The communication savvy mediator today does not view mediation as a face-to-face dramatic encounter so much as a steady stream of communications, some online, some by phone, some face-to-face, all choreographed to result in a best understanding.

Are mediators embracing communication technologies because we are geeks?  The answer is “no.”  The reason we are embracing communication technologies is simple: our clients are demanding it.  The wise mediator, at least the one that wants to stay in business, learns to communicate with clients in the ways that clients want to be communicated with.  For fewer and fewer, this is “in person.”  For an increasing number, it is also communicating by cell phone, texting, email and skype. The issue is not “which communication modality is best,” but “which communication approaches are best for accomplishing certain things, at certain times and with certain people.” 

Sample Mediation Communication Choreography

As an example, a communication savvy mediator may today engage the following communication approaches (none of which existed 10 years ago):

1. The mediator has a capable web site showing his or her picture, a welcoming video clip, a full description of practice and background, links to authored articles, resources, etc.  This web site is available 365/24/7 and has to a great degree eliminated the need to “send out” basic information.
2. The mediator has published articles elsewhere on the web and belongs to a number of organizations, all of which are found by clients using Google.
3. Using her smart-phone, the mediator responds to inquiries from pretty much anywhere at any time (including while on vacation) and sends along responsive email with attachments.
4. By directing participants to her online intake form, the mediator obtains critical information for all participants (cell phone numbers and email addresses most importantly) and then easily catches all newcomers up to speed with attachments and web links.
5. The mediator schedules a skype (real time) video session to discuss mediation process issues, including agenda definition and document production (also trust building).
6. A face-to-face session is held with the mediator knowing that her ability to communicate with participants following the face-to-face meeting is robust.
7. A first draft agreement is circulated by email with “track changes” (Word feature) turned on.  Each participant’s edits show up in a different color.
8. The mediator communicates by email and phone with participants and attorneys to bridge gaps and sends along a suggested final draft.
9. The mediator requests a skype session to confirm key terms and allow for final comments and questions.

We are very close to a time when disputes will be filed online, referred to mediation online and a good measure of mediation communications (sometimes all) will be done online.  While these efforts may not be ideal “Rolls Royce” face-to-face mediation, online efforts are surely better than no mediation.  For many people, the Internet and asynchronous (safer) communications allow for deliberation and face-saving.  To this date, no one has received a bloody nose over the Internet.  Our challenge is to do those things online that can be done online for those who want to communicate online; and to do those things face-to-face that require direct contact for those who are inclined to meet.

Online Emissary Mediation and Asynchrony

Two additional points:

1. When it comes to problem solving, online mediation will likely tend toward “emissary mediation” (shuttle diplomacy) in contrast to “facilitated joint problem-solving.” The problem with joint problem solving online is that the mediator does not have the visual information or ability to early intervene when one or more participants start to go “sideways.”  Online, mediators are more effective as shuttle diplomats first communicating in depth with individuals as part of caucus discussions and then diplomatically conveying offers and responses and keeping the conversation going.
2. In addition to this suggested increased shuttle nature for online mediation, it is important to note that we have one remarkable quality online that we do not have face-to-face, which is “asynchrony.” Email is a good example of asynchronous communication.  With asynchronous communication, we get to craft our message and refine it (much as I am writing this article asynchronously) and only “send” the communication when it is as good as it can be.  Asynchronous communication allows us to be at “our thoughtful best” (rather than our impulsive first).  This is no small accomplishment in the world of mediation and asynchrony is a concept to be cherished and developed in the future.

Through our increasing use of the web, cell phones, email, attachments, skype, texting and other communication channels, synchronous and asynchronous, we are now all “online mediators.”  Our world and the times require it.  Effectiveness in mediation today thus involves more than just considering what is done and said “in the room.”  Mediation effectiveness today includes an examination of all our communication practices and assumptions as we seek to best sequence, tailor and combine communications to best serve ever more tech savvy participants.

                       

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 25-year tenure,… MORE >