Like many of our contemporaries, we were using telephone, email, Skype and Zoom in our practices long before the abrupt changes brought about by the pandemic. Their use was purposeful and strategic—and then, we had a choice. Physical distancing has upended our practices. And, lacking the option of meeting face-to-face, we have quickly shifted our client contacts to phone calls, email and video conferencing.
With these changes, we have had to give considerable time and energy searching for new and updated guidance on managing the technology, addressing unique privacy/confidentiality concerns, aiding clients unfamiliar with or skeptical of video conferencing, and adding skills for handling the complex interactions of a mediation using a virtual platform.
Along with the online concerns, we focusing on how the issues raised by the pandemic might affect our approach to mediation. We wonder does the change in methods push us to let go of our models of practice in favor of “whatever gets the job done?” Is it possible that the move to online sessions could lead to practices more likely driven by a drive for expediency, efficiency and the bottom line? Is it possible that an emphasis on pragmatism could result in our paying less attention to communications among the participants and to the quality of the interaction between them? Do well-formed and practiced models give way in the face of pressures to meet participants’ urgent needs for an outcome?
The title of this brief essay is taken from our reflection of the traditional “four questions” asked during the Passover Seders recently celebrated. During the Seder dinners, children ask the traditional questions about why certain practices and foods are associated only with this holiday. With the pandemic and its unique circumstances, we ask of ourselves and our colleagues why should conducting online mediations now be different from managing all other mediations?
There are obvious differences in strategies and techniques. Of course, we are subject to the quirks of the online platform. The quality and pace of our interactions can be affected by available bandwidth. Confidentiality cannot be as easily assured. On the other hand, we can mediate in our pajama bottoms and slippers! For this essay, however, we aren’t focused on differences in techniques and the added challenge of managing the online process.
Instead, we are concerned with the possibility that these differences in format and delivery may inadvertently lead to changes (both subtle and profound) in our thinking about our practices; that our views about our role and responsibility may unconsciously result in the setting aside principles we otherwise observe. For this reason, mediators need to be especially mindful of the values and principles that have guided our practices when we were able to meet face-to-face.
Three conditions are likely to challenge our attitudes and beliefs about how we mediate.
Reduced Access to the Courts
Court access is extremely limited. Without the option to litigate, parties are compelled to find solutions to their disputes through alternate dispute resolution processes, most especially, mediation. Pressure to settle increases along with heightened anxiety about the duration of the shut-down. We mediate in the “shadow of the law” but when judicial intervention is unavailable, except in the most exigent circumstances, should we alter our approach? For example, are we more willing to offer solutions and advice or to give a mediator’s opinion? Parties are even more frantic for the security of solutions. Does the transition to an online process mean we are now willing (or more willing) to act in ways that assure solutions? Or, might mediators respond to the participants’ angst with techniques designed to foster engagement, constructive communication and relationships?
As mediators feel added pressure to respond to the needs of participants, notions of neutrality may be tested. The ethical standards for mediators requiring respect for participant self-determination have no exception for online mediations or exigent circumstances. We are reminded of the AAA/ABA/ACR Model Standards that define self-determination and our role in honoring it
Self-determination is the act of coming to a voluntary, uncoerced, decision in which each party makes free and informed choices as to process and outcome. A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos…
Do the same principles apply when achieving the certainty of a settlement takes on greater urgency? In every mediation, there is a common focus among the mediator and participants to find a suitable end to the dispute. The question is whether heightened anxiety and stress resulting from the pandemic is a basis for yielding to the temptation to offer solutions in order to do well for the participants? Will mediators be tempted to act in a more “therapeutic” fashion by being calming and reassuring? And if that occurs, would such interventions cause a subtle shift in otherwise careful balancing required to maintain neutrality? Do we then interpret the meaning of self-determination differently in this crisis?
Our ability to remain neutral will be tested as economic pressures deepen and as anxiety intensifies over the length and extent of the shut-down. Our skills at managing and supporting effective communication will be tested. Flexibility and patience—hallmarks of our practices—will be more crucial than ever.
Mediation is now a Primary way to resolve disputes
The changes we are experiencing will likely move mediation to a role of “primary” dispute resolution method. If not now, then within the next several weeks, pressure will build to end marriages, to resolve financial disputes, to settle workplace conflicts. Mediators will, after an initial drop in referrals, likely experience a wave of requests for their help. The desire to relieve the pressure of conflict through mediation will correspondingly increase the sense of urgency to deliver results.
Online mediation will require adjustments in the delivery of our services. We will need to make accommodations for the challenges resulting from a nearly complete shut-down of our society and the consequent emotional, social and financial pressures. We will need to address how the challenges of parties juggling working at home with family responsibilities, privacy and financial issues they have will necessarily cause us to compromise, bend or otherwise vary our thinking about our work.
So, what is the answer to our Passover themed question-Is the way we mediate now different from all other mediations? Mediators will certainly need new techniques and strategies, as well as learning to adapt their skills to the online platform and to the new challenges facing mediation participants. However, in the search for a new approach, mediators should not compromise the standards, principles and values that have shaped our practices.
Now that my step-son is no longer my legal assistant (sniff) but an IP litigator with one of the best IP firms in the country (Irell & Manella) he's a source!! Yesterday...By Victoria Pynchon