Digital Transformation v. Digital Replication in Mediation Practice


Digital Transformation v. Digital Replication in Mediation Practice

When restrictions on face-to-face meetings suddenly arose last March, the challenge to meet urgent conflict resolution needs also presented a unique opportunity to examine process assumptions. Previously, many parties, advisors, and mediators viewed online meetings as a compromise solution to meet specific challenges (e.g., travel costs) where parties were not geographically close. Where it was possible for people to be in the same room, the assumption was that they should be.

Forced online, conflict resolution professionals re-examined some unquestioned assumptions about communication, including that:

  • direct verbal communication is always best;
  • clients are used to face-to-face meetings, and comfortable in that format;
  • rapport is easier to build in person; and
  • good communication requires you to experience all non-verbal cues.

Interestingly, the move online also encouraged conflict resolution professionals to meet readily and across distances to share experiences and expertise freely.

COVID-19 has of course generated new and heightened conflicts as well as process challenges for mediators learning new skills. For example, beyond mere technical challenges (like how to operate virtual break-out rooms), we had to address more fundamental issues. How do we best mediate a dispute where the parties are co-located (roommate disputes while quarantined) but the mediator is at a distance? How can mediators ensure party safety (physical and emotional)? How can we address needs of parties (computer hardware, adequate bandwidth, technological comfort, and expertise) in circumstances of limited or disparate access?

After months of building new skills and questioning old assumptions, some may look forward to a return to pre-pandemic practices, but many others are identifying ways to offer better, more flexible, client-centred process choices. After all, we can expect that parties used to working from home will ask why they need to pay room rentals and give up travel time to meet in person.

Here are a few areas where I hope pandemic learnings will continue to transform the practice of consensual conflict resolution.

  • Some disputes and some parties are better served by online processes. What disputes or individuals were better accommodated online? Every time we recommend mediation, we should consider whether online, face-to-face, or a mix of processes might better serve.
  • Some senior mediators brought newer mediators into their work as co-mediators for the first time — in many cases because newer mediators brought technological expertise. Positive experiences and relative ease of obtaining client buy-in when there is a clear process value to two mediators may mean it will be easier for new mediators to find such support.
  • Confidentiality was a big topic as mediators discussed platform security, document exchange, electronic signatures, and more. Many edited their Agreement to Mediate to expressly disallow recording or broadcasting. Of course, recording and broadcasting are possible in-person, too, so newly raised awareness should carry over and improve practice.
  • There are many different online tools, offering different benefits and challenges. Is WhatsApp better for international mediation than Zoom? Is videoconferencing always best, or might it be preferable to conduct some or even all of a mediation by audio-only, online chats or even texts? What do the parties use for normal communication, and might that be a better platform choice?
  • Virtual meetings have broadened the community of conflict resolution professionals. Our “local” Communities of Practice and Mediators’ Lounges now welcome “regulars” from across North America, and frequently include participants from African countries, the UK, Australia and New Zealand. I hope we can build on this growing international exchange of ideas as we examine how best to serve our own communities.

Going forward, what other temporary accommodations to COVID should supplement, replace or transform our old practices? Reflective practitioners will use lessons from this pandemic to offer better, client-centred and consciously chosen digital, face-to-face, and hybrid options to resolve disputes.

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