In this article we hear from prolific mediator Robin Burley, who discusses the effective use of virtual mediation in the context of his considerable experience.
In brief, how have virtual solutions such as Zoom been used to ensure the continuity of mediation during the COVID-19 pandemic?
Most mediators reached for Zoom or other remote methods of mediating during the 2020 lockdown as a pragmatic way of continuing to provide a service. Previously, my experience of telephone and video platforms for mediation had not been encouraging with frequent drop-outs. I expected to be back mediating on-location as soon as possible, but I soon found that virtual platforms like Zoom are more stable and a well-run virtual mediation can be as effective as the on-location events. Now, video platforms have an important role to play in the mix of ways we communicate and in the mediation world the online setting is uniquely placed to take centre stage.
Most online platforms can be set up to provide a suite of rooms just as we might use in a hotel or office. By using these virtual rooms, each of the parties can have their own private meeting space for discussions with their legal and other expert advisers, and for the caucus sessions with the mediator. Messages and files can be passed around by using the chat function and documents can be ‘tabled’ for viewing, discussion and revision in a similar way to having them laid out on a meeting table.
Do you feel that the use of virtual platforms for mediation is still relevant as anti-pandemic measures are eased?
One of the incidental outcomes of the pandemic crisis has been that we have all upskilled very quickly in using smart devices and online platforms for communications with our family, friends, colleagues and other business contacts. What this has meant is that the skills and experience of using online communications are now population-wide and almost as universal a competence as using a telephone. Also, most of us have in a pocket, handbag or on a desk a device such as a smartphone, tablet or laptop which has all the technology needed to participate in an online video meeting.
However, while most people have the technology, we do not take for granted that they have used all the functions we use in a mediation. But most people know how to get online and join a meeting. Even where people only have a basic knowledge, mediators can support them in pre-mediation meetings with training and familiarisation to make use of the full functionality of the particular online platform.
Video platforms have an important role to play in the mix of ways we communicate and in the mediation world the online setting is uniquely placed to take centre stage.
What are the advantages that parties stand to gain from utilising a virtual approach to mediation?
Mediation is much less costly than litigation, but a place-based mediation may still draw participants many miles by car, train and plane to the designated meeting place for a day meeting. Not only is there the expense of travel, but also the time it takes out of the working day, and then there is the challenge of finding an early date in the diaries of several busy people. For some participants it may involve overnight stays in a hotel.
By contrast, a virtual meeting can be arranged for each participant wherever they work best, whether that is the office or their home. It is also easier to synchronise slots in several diaries, sometimes using a couple of half-day sessions on consecutive days or a few days apart with adjournments or resumptions also being easier to arrange.
With COP27 recently in the news, many businesses and individuals may be more conscious of working in ways that are better for the environment. A remote mediation can be the greener choice – a benefit borne out by 700 mediators worldwide having signed the Green Mediator Pledge. Mediators across the globe are stepping up to the plate to take concrete steps to reduce the impact on the climate of each mediation we conduct. More information about the Pledge can be found on www.womacc.org.
By the same token, what drawbacks are often encountered?
We might all have a bit of technophobia when we meet new or unfamiliar technology, and while the pandemic has done much to familiarise us with virtual communications, even using a familiar technology in a new way and in the company of strangers can feel challenging. Mediators can help overcome these fears by introducing participants to the use of the technology platform in the same way as we introduce participants to the process of mediation. During mediations we need to be conscious that too much screentime can be tiring and a good discipline is to take short breaks every hour or two.
Then there is that unquantifiable factor: body language, and what we make of physical behaviour, expressions and mannerisms that communicate nonverbally but which we often instinctively use as carrying meaning. Arguably, with a visual platform we still retain some physical communication, and as we become more accustomed to Teams or Zoom for meetings and Skype, FaceTime and Google Duo for video calls, we are intuitively familiarising ourselves with nonverbal signals online.
Can a 'blended' online-offline approach mitigate these drawbacks?
It is interesting that, even in conventional mediations, we might use telephone or email at the introductory stage – and possibly a conference call for pre-mediation meetings, more emails to develop the plans and confirm agreements, an on-location meeting for the substantive discussions and negotiations, and then there may be more telephone and email contact to finalise the settlement. It seems we are already used to a blended way of working, so it is simply a natural development of the way we work to think about where video communication works best.
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For example, if the parties are hesitant to commit to online for the main mediation meeting, they might start by meeting the mediator online for the pre-mediation meeting(s). This gives participants an opportunity to get a feel for remote working and the mediator can fit in a taster/familiarisation session about how the online platform would be used in the main mediation meeting.
How would you advise parties and counsel to make the most of these widely available technologies as part of the mediation process?
A strength of mediation is its flexibility, and a mediator skill is tailoring the process and resources to suit the occasion and the parties. Virtual mediation may have been the only show in town for the best part of two years, but now it can be a positive choice. The pre-mediation conversations between the mediator and the parties and counsel are the time to discuss how technology can support the process and create optimum conditions for the all-important dialogue and eventual settlement.
If any of the following place a tick in the box for you in a dispute resolution case, then the virtual route is worth considering, at least as part of the blend: easier to get several people together at one time; reduced lead-time to mediation session(s); convenience of shorter sessions over a couple of days and adjourning/reconvening; flexibility in setting up private rooms for parties/advisers; savings in time, travel and venue hire; and reducing our impact on the environment.
More than that, participants’ feedback is that virtual mediations are an agreeable setting for challenging dialogue. And the evidence of virtual settlement success rate, which is on a par with physically located mediations at around 80%, confirms this.
Robin Burley, Mediator & Business Coach
Green House at Eskhill, 15a Inveresk Village, Musselburgh EH21 7TD, UK
Tel: +44 131-271-4000 | +44 7774 127809
Robin Burley is a Scottish Mediation Registered Mediator. He established his mediation practice in partnership with his wife, Lindsay, 18 years ago. Between them they have carried out over 600 mediations in commercial, consumer, complaints, in-court, workplace and employment cases, in fields of work from farming to information technology and higher education to housing, care and health. His previous career was in housing and community care and he has held executive and non-executive positions in the charity and public sectors. He has a Master’s degree from the University of Strathclyde in Mediation and Conflict Resolution, is a Member of the Chartered Institute of Arbitrators, and is a past Chair of Scottish Mediation, the Scottish voice of mediation and register for mediators.
