By Joe Basta
One of the few benefits of COVID may be discovery of virtual reality’s utility for dispute resolution. What was born of necessity has now become routine. Zoom appears to be the default for mediation. And now that we are post-pandemic, and no longer under its artificial pressure, taking stock is in order.
How do lawyers, parties, and mediators feel about the new reality? I look to three sources for guidance: first, second and third year student evaluations of my negotiation course at Michigan State University’s College of Law, where for three-plus semesters they negotiated and mediated via Zoom; second, my own anecdotal experience as both a paid and volunteer mediator, helping lawyers and parties in both civil and domestic relations disputes over the past three years; and, third, an informal survey of leading mediators by Jay Folberg and Dwight Golann and reported in their book “Mediation: The Roles of Advocate and Neutral.” Here are my observations, most pro, some con.
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We like it
Many mediators approached the need to resort to the internet for dispute resolution with suspicion and dread. We thought the use of Zoom temporary and a poor substitute for in-person connection. Surprisingly, as time wore on, these concerns dissipated. In the case of my students, I thought enthusiasm resulted from the unique break Zoom interaction gave them from the forced isolation of the pandemic (and relief from the Socratic method of pedagogy). Perhaps the same logic was at work with other practitioners too. But there was more to the enthusiasm than that.
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We make unique connections — or not
As Folberg and Golann report, mediators worried about their ability to make the personal connections necessary to be effective. But Zoom gives parties the ability to work in the more informal and relaxed atmosphere of their own homes and offices. This atmosphere appears less intimidating than attorney conference rooms. Pets, children, and other home distractions are new phenomena offering unique opportunities for informal connection. Background and lighting tell stories we might not hear otherwise and invite stories of our own. What messages do participants send by telecasting from a sloppy bedroom versus a neat study with pleasant mural behind? Bringing food to establish rapport—a favorite tactic of some mediators—is no longer an option.
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You can’t beat low cost and convenience
The ability to work from home or office saves the cost and inconvenience of time and travel. People in remote locations or different time zones can be brought together in one place more easily. There is less excuse for key decisionmakers not to be present, regardless of where their offices may be. Scheduling is less of a hassle. Parties may engage out of state or out of country mediators and vice versa. The same factors which made remote workers resist returning to the office militate in favor of remote dispute resolution. But convenience comes with its own price—you need a good internet connection, digital devices that work smoothly, and some facility with the technology to make the most of Zoom. Smartphone communication from your car is a bad look and does not work well.
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Parties may be more autonomous
Folberg and Golann also report parties are more active in Zoom, not just because of the home environment, but because each person may share an equal “window” in the video format, often separate from their lawyer’s. Parties engage more readily, and it is more difficult for lawyers to control them. This may be true in some cases, but I find an increasing number of lawyers sharing screens with their clients from the lawyer’s office so they can just as easily control their clients as they did before, and the clients are no more likely to speak spontaneously. And squashing two or more people into one Zoom window poses communication challenges of its own.
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Behavior has improved — or has it?
Zoom permits us to see one another on the screen. Some mediators believe that this has improved behavior and that it may afford them better insight into their own demeanor.
Are you better able to see and react on screen when you see yourself angry or tired? Perhaps. I still see lawyers behaving aggressively when their buttons are pushed and clients seemingly oblivious to how they are dressed and the oddities that lurk in their background. You do get a sense of the seriousness with which all approach the process, however, when people are in their own environment rather than in the artificial environment of the lawyer conference room.
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Private communication is easier
Mediators often need or want to speak with lawyers out of their client’s presence. This is often awkward to do with in-person sessions without raising suspicion that the professionals are “hiding something” and leaving the client feeling alienated. Zoom eliminates this awkwardness. Participants who sign on initially are put in the “waiting room” where they do not know who else is there and cannot speak with them. The mediator can send a chat message to them while they wait for the session to start. In the interim, the mediator may summon one or more lawyers to the main session or into a breakout room—unbeknownst to anyone else—to discuss how best to expedite the process and to help them and their clients. Informal chats in the hallway or at the coffee machine during breaks are out.
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Less wear and tear on mind and body
Folberg and Golann tell us lawyers and parties find virtual processes less demanding and fatiguing than in-person negotiation. Participation from home reduces the stress level and allows participants to disengage by shutting down audio and video and simply walking out of the room for a bit. There is less pressure when you don’t have to spend most of the day cooped up with others. But spending most of the day on screen brings its own fatigue if you don’t take regular breaks.
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Reading the room
Reading the room appears the biggest challenge posed by Zoom and the greatest subject for disagreement among mediators. Some can readily read faces on screen, but no one can read body language when the format and camera angles restrict views largely to head shots. Groups gathered in one room can be particularly problematic because you usually can see only one person at a time. Groups are not likely to be as concerned as the mediator about their positions on screen. They may more easily forget they are on screen.
Folberg and Golann report one mediator requires each person to be on their own device so she can connect with them in a more personal way. As useful as Zoom may be, in-person interaction is likely to remain the “gold standard.”
When people are physically together, there is a personal dynamic, a dimension, a presence that most of us who are not actors simply cannot communicate on screen and use to enhance rapport with the participants.
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Are settlements more likely?
There is no good data on the effect virtual mediation has on settlement. Anecdotal evidence seems to indicate settlement ratios are about the same. Folberg and Golann speculate enabling more people with authority to attend without need for travel may drive up settlement levels. They also note that conventional, in-person mediations have a “settlement event” or finality about them that may make participants likely to take them more seriously than Zoom sessions from which they can easily disengage. I agree participants are more likely to dismiss a mediation scheduled on Zoom that they would one set in person. Scheduling ease cuts both ways.
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The bottom line
Although most would agree that in-person dispute resolution remains the “gold standard,” the cost and convenience savings of virtual mediation are likely to trump and continue to make Zoom mediation the default for dispute resolution. Yet there may still be a small category of disputes where in-person mediation is appropriate, where the nature of the conflict, expense, emotion, and geography dictate otherwise. The challenge for lawyers and mediators will be discerning which venue works best for each dispute. For most, see you on screen.
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Joe Basta heads Basta Resolutions PLLC, an Ann Arbor-based firm specializing in mediation and arbitration of commercial and family disputes. He is a former chair of the Alternative Dispute Resolution Section of the State Bar of Michigan. He was a trial lawyer for over 34 years at Dykema, litigating complex commercial matters. He teaches negotiation at the Michigan State University of College of Law and is a member of Professional Resolution Experts of Michigan Inc. (https://premiadr.com).
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