Upcoming FLPA Seminar - Mediating in a Pandemic
On Thursday I will be speaking at a FLPA lunchtime webinar about the world of online dispute resolution (ODR) that has seemingly been thrust upon us by the COVID-19 pandemic.
POST COVID-19 THE ONLINE EVOLUTION OF DISPUTE RESOLUTION
History is littered with black swan events – the dot.com crash, 9/11, the GFC, Brexit and now COVID-19.
Black swan events also have a tendency to pave the way for innovation and change. Repurposing has become one of the trend words of 2020.
Family law courts in Australia very quickly implemented Microsoft Teams to ensure the continuity of appearances, applications and trials via video conferencing. Sheer necessity no doubt drove that quick adoption when the delays already facing those courts were notorious.
Technology enables the Court or an arbitrator to proceed with one party and their counsel physically with them and the other remotely attending through video app or both attending remotely and by video. Indeed, hearings of that fashion, by the Court or by arbitrators, have become necessary in light of the present COVID-19 pandemic. It is a mechanism well known to and used by Family Dispute Resolution Practitioners. If nothing else, the current COVID-19 pandemic is accelerating consideration of the use of such technologies.
Even before the courts adopted video conferencing as their temporary normal, many savvy legal practitioners had already pivoted (another trending word) their face-to-face practises towards online platforms and this was especially the case for mediations.
The population, including mediators and legal practitioners, have now become more comfortable using video conferencing for professional interactions, the question now posed is “Why should we go back to the old normal ?”
In the ADR field, video conferencing is not something necessarily new and telephone mediations are certainly not a novel concept, but these platforms were not commonly utilised unless reasons of distance meant that the only forum in which a mediation could occur was via digital means. Usually, telephone conferencing was the default platform as there was no real understanding of the video conferencing software readily and conveniently available to the public and professionals at next to no cost.
With COVID-19, and the resulting physical restrictions and anxieties, video conferencing was quickly adopted by those with the resources and the aptitude to do so. For everyone else video conferencing was forced upon them as the only means of keeping their doors open.
From an ADR perspective some advantages and disadvantages of the video conferencing system have emerged from the recent collective experiences of those participating in online mediations particularly in the context of using the Zoom platform. (This should not be read as an endorsement of Zoom as the only appropriate or the most appropriate platform available for video conferencing mediations).
Mediation through video conferencing falls within the broader terminology of Online Dispute Resolution or ODR. ODR covers all means of mediation reliant upon some technological interface to conduct the mediation and includes, telephone, text, email, internet interface and video conferencing.
ODR has of course been around for a while with the recent ALRC Family Law Review raising a specific question in the Issues Paper as to whether ODR should play a greater role in helping people resolve family law disputes.
“In person” mediation (meaning the parties are in the same building at the same time) have of course been the standard approach to mediating family law disputes, however “in person” often does not equate to “face-to-face”.
Why this is so is no doubt linked to that most fundamental aspect of mediations – trust. Because parties to a dispute ordinarily distrust each other immensely, the trust factor within a mediation becomes vital. Boulle breaks down trust into three separate (but connected) areas – trust in the mediator, trust in the process and trust in ones own negotiating abilities. 
The other reason mediations have predominantly been in person is that mediation is often an adjunct of a court process….which has always been in person ! Indeed, it could fairly be asserted that pre COVID-19 a party would have to establish a reasonably strong case in order to obtain leave from the Court to appear via telephone let alone video conferencing.
Until COVID-19, as a society we have probably developed a tendency to view in person interactions more favourably and as more trustworthy medium than online interactions.
In person mediation is not without its own shortcomings as indeed the recent ALRC Family Law Review recognised that in instances where there had occurred significant family violence, a victim’s option to resolve a family law dispute (parenting or property) through mediation was often unavailable forcing them to litigate, and therefore counterintuitively into a system where they may need to confront the perpetrator, on several occasions and over a sustained period of time, or, subjected to economical control or abuse.
COVID-19 has quickly forced upon most practitioners and clients the world of video communication and online mediations.
Anecdotally, many practitioners have stated to me that for them, they would be advocating for the continued and increased use of online dispute resolution. In case I was not just surrounding myself with those who had agreeable views to my own I conducted a straw poll of my peers.  The following response encapsulates the tenor of most;
I think we all should embrace online meditations, and as practitioners support the idea, particularly as I do not think this pandemic is an isolated, once in a lifetime, event. We must grow more accustomed to practising in this fashion. In our office, we are still offering meeting by Zoom and Teams, even though we are all back in the office. We do this for many reasons, and clients seem to appreciate the option. The back end of the mediation, ie the communication between the solicitors and mediator, is crucial, and would need to be facilitated.
The overall responses indicated to me that on average, most legal practitioner had a positive experience and view of ODR but also considered that ODR would not replace in person mediations. For the most part, the responses indicated to me that it would be a case of “horses for courses” in terms of recommending in person or ODR.
Zoom Mediations vs In Person Mediations (Weighing the Benefits)
In advising a client about whether or not to arrange a Zoom mediation with ADR Chambers the following table is offered to assist practitioners and clients weigh up the advantages and disadvantages of either forum. What legal practitioners probably should appreciate the most is that from the client’s perspective, they will likely have experienced neither forum whereas a practitioner, at least until March 2020, would have predominantly experienced in person mediations.
“Because that’s the way we have always done it” is not an acceptable reason for not recommending video conferenced mediations to your client and potentially denies the client the opportunity of a fully informed decision about the platforms available to them.
Further, your lack of experience of ODR is also not an acceptable reason for advocating against ODR when the client would prefer that option.
The considerations generally fall into two categories, either tangible considerations such as travel costs or intangible considerations such as comfort and establishing rapport with the mediator. There are also some existential considerations.
Whilst I would advocate for the use of videoconferencing more frequently, in person mediations should and will continue to be appropriate.
However, knowing that an alternative format is available, the duty falls upon the practitioner to discuss objectively the benefits and detriments of the two methods to provide the client with all necessary information to make a well-informed decision of their own. Our own fears or prejudices about in person mediations vs. ODR should not influence the client’s decision.
Some of these are now unpacked.
Cost and Convenience
Not needing to leave an office or home not only brings with it discernible financial and time savings, the economic value of the convenience brought about by ODR must also be something worth considering.
On a tertiary level, most practitioners book their entire day out of their diary when participating in a mediation and achieve little other work before, during or after the mediation particularly when out of their office. The list of messages and emails to follow up upon grows. Regional solicitors having to travel into a mediation no doubt experience this issue on a greater level.
There is usually “dead” time for a practitioner during a mediation. That “dead” time can often cause frustration for a practitioner. What could be done during that dead time if one was not away from one’s desk ?
On a primary level, a client attending a day long in person mediation often engages in a process of human resource and risk management. When will I leave ? Who is getting the kids ? Who is getting dinner ready etc etc. ? If the client does not need to leave the home (or their solicitor’s office down the road) how much more focused would a client be on the negotiations ?
ODR also brings the availability of a greater number of experienced mediators to regional areas.
ODR also brings with it a greater efficiency in scheduling. How often have we ruled a specific available date out of our calendar because of something that bookends that date ? If we are not leaving our home or office for the ODR we know we are not likely to be as fatigued or as time strapped than when we lose 4 hours of our day on the Bruce Highway carpark.
The feedback from those responding to my poll indicates that issues surrounding rapport were at the forefront of concerns. For the most part, the responses indicated to me two issues, firstly that establishing rapport with a client was important and/or vital to the success or failure of a mediation and secondly, establishing rapport with a client is or could be more difficult in ODR.
In my opinion, neither of those two issues are absolutes.
It is helpful, but not necessary to establish rapport in order to achieve a successful outcome. Indeed, I have left some successful mediations with the distinct impression that I established no rapport with neither party.
But what is rapport ? Rapport is an agreeable relationship between people where there is understanding of feelings and ideas and smooth communication.
Rapport is important in a mediation and is one of five the elements Boulle refers to in the establishment of trust in the mediator. Boulle suggests the following as establishing trust;
- By affirming their credentials as mediators;
- By showing respect and concern for the parties;
- By establishing a personal rapport with the parties;
- Through good active listening skills and acknowledgement of the parties’ concerns;
- By being impartial and even-handed in the conduct of the process.
A lot of these skills are sometimes referred to when referencing a practitioner’s emotional intelligence.
It is argued therefore that trust in the mediator can be established without necessarily establishing rapport.
Whilst there may be a challenge to establishing rapport in ODR, in my practice I have engaged in steps to break the ice with a client before the mediation in order to enhance relationship building with clients. Starting the relationship building process before the mediation commences seems to be a good way to establish rapport.
But understanding that rapport is important in a mediation, the methods that I think about when trying to establish and maintain rapport with anyone include;
- Staying calm – Master Oogway not Master Shifu
- Assume ignorance rather than malice (miscommunication)
- Engaging in small talk
- Affirmation through empathy
- Affirmation through mirroring
- Disengaging with entitlements and focusing upon interests
- Underscoring/flagging emotional responses
- Sharing visuals
- The digital watercooler (for practitioners)
- Promoting or suggest options/choices
- Reinforcing the importance of risk-assessment with their team
Rapport should not be confused with respect of or deference to the mediator. In some of the feedback collected from my straw poll, the responses indicated that in person mediations are seen as a way of controlling their client.
Sometimes I wonder if the solicitor actually expects me to control the other client / solicitor assuming of course their client/case is correct !
Ultimately, a mediator and a solicitor advising a client must establish trust principally because the client is being asked to take on the “risk” of settling at the mediation as against the alternative of seeking a litigated outcome. Risk analysis requires cognitive and logical decision-making to occur. That seldom occurs when a client is in fight or flight mode with someone or something they don’t trust. The single worst time to commence a risk analysis with a client is at final offer time. WATNAs and BATNAs should be well explained before the mediation commences and then, with the assistance of some reality testing of the mediator, those boundaries reassessed during the mediation. No amount of rapport will overcome the mistrust of a mediator or the process when the WATNA is heard by the client for the first time at 4:55 pm.
As part of generating trust in the mediation process, ODR presents a real advantage to participants.
Apart from the physical location likely being one where they are comfortable (ie. From their home / their lawyer’s office) because setting up a Zoom ODR is almost as simple as making a phone call, clients can experience a test or dry run.
But has a client ever been able to have a dummy or “dry run” of a mediation ? Most probably not.
Dry runs allow a client to experience how the online mediation will look and feel and sound. A mediator can allay their concerns they might have surrounding privacy (e.g. show them how breakout rooms work) and ability to collaborate.
As part of my practice I have encouraged pre-mediation conferences in advance of the mediation date with the client to be conducted via Zoom which then doubles as an opportunity for a dry run. Sometimes the practitioners have wanted to participate in this process if for no other reason than to test their equipment !
It is important to always emphasise that no one will be disadvantaged or be considered foolish if their technology fails and to be as patient as possible during these dry runs.
The Solemnity of the Occasion
Reinforcement of the strict confidentiality surrounding mediations and the requirement for privacy and removal from distractions has become well understood by all, but is the solemnity and importance of the occasion lost when a mediation is held online compared with a mediation held in person at Level 5 of the Inns of Court Brisbane ?
As with rapport, my view is that this is more about solicitor-client management than the process of mediation itself. A client with an avoidant personality will likely seek to disengage in either scenario but I would argue this would be less likely in a trusted environment than in a foreign environment.
Further, the idea that the mediation is not of itself a “high stakes” occasion is fallacious. Indeed, it is part of my process that the clients understand that the mediation may be the last occasion a client truly has any control over the outcome and the costs of the outcome.
Apart from FDR when a sect 60I certificate may be produced, there is no consequence for a client who does not engage genuinely engage in the mediation process, other than the consequence of the lost opportunity to resolve the dispute, whether the mediation is conducted in person or online.
Much has been suggested in the mainstream media about security issues surrounding video conferencing particularly Zoom with instances of uninvited guests Zoom-bombing (another 2020 trending word) or hacking into meetings. It must be observed however that these issues appeared initially during the commencement of the COVD-19 crisis when some of us were not skilled enough at security setting and to my knowledge no mediator has had their Zoom (or any other platform) mediation attacked.
It is also relevant to observe that as a company, Zoom has responded quickly to these suggested attacks and improved upon the default security settings and to allow users to restrict their data flow to particular regions. Currently, when hosting a Zoom meeting, the host must either require entrance to the meeting via a password or the waiting room facility setting. If one is not selected, the system defaults to the other.
This should be balanced about the physical security that the world of ODR presents as referred to above. ODR opens up mediations to a cohort of clients that might be otherwise unwilling or unable to participate through safety fears. In the above referenced case of Palgrove the wife’s anxiety about being in the vicinity of the husband whom she alleged had perpetrated serious family violence upon her caused her to become psychologically incapacitated. Video conferencing allowed her to participate in the arbitration in a psychologically supportive and safe manner.
The environmental benefits that flow from ODR are undeniable. My mileage log for 10 weeks in the 2019-20 financial year (pre-COVID19) was 5,399km in the last 6 months I have driven my vehicle only 7,145km and that included February and March which were pre-COVID.
The personal time savings have simultaneously increased. Not being on the road traveling has brought about an increase in not only my personal productivity but a greater work-life balance. Pre-COVID-19 it was rare that my wife and I could enjoy a post work walk with the dogs for an hour, however for the last four months a post work dog walk has become the norm. I am unsure whether my children are as excited about having me around more but I at least am rewarded by that experience.
Less travel time also reduces risk of a motor vehicle incident.
There are also potential health pitfalls. Online mediations create the potential for us to be seated and stationary for longer periods of time although these can easily be overcome.
Less understood is the exhaustion caused from screen exposure. More research upon this phenomenon is required.
On a positive note, because of the convenience that ODRs create, the mediation process itself can potentially become less transactional and more transformational.
To better understand what I mean by this, picture the standard model of in person mediation being transactional where an experienced mediator has minimal contact (if any) with the parties prior to the day of mediation, they are usually bombarded with a series of emails and documents in the days before the mediation, they then insert themselves into the dispute on the day of the mediation do their best job possible to resolve the dispute and then depart at the conclusion of the mediation irrespective of outcome.
I call this the parachute mediation model which is really a singular transaction.
The approach that I prefer and am attempting to advocate through my Optimised Primary Dispute Resolution (OPDR) model involves initial contact between the mediator, solicitors and clients at an early stage (Early Assistance Mediation) where we work out what is really in dispute, put into place some agreed stop gap measures (i.e. interim parenting / cash management arrangements) and then plan and prepare for a final mediation (Genuine Resolution Steps). In the weeks before the final mediation I conduct an individual session with each party to make sure they are ready for and understand how to mediate (Pre-Mediation Conference). I also collaborate with practitioners in advance of the mediation to prepare master documents and narrow issues and otherwise ensure everyone is prepared for the mediation.
I argue that a transformative process should be more trusted by a client. It involves them more. It gives them greater opportunity to establish trust (rapport) in the mediator. They are not rushed, bombarded, ambushed or denied information during this process. They have trust in their own decisions about risk because they have prepared well for the mediation.
“The human brain is a machine for jumping to conclusions – the fast mode - and that it often jumps to strangely erroneous conclusions because of certain hardwired biases that must be very consciously and deliberately corrected if we want to avoid such errors - the slow thinking part.” (Daniel Kahneman).