July 22, 2020 In Mediation

What to Assume Before You ZOOM Mediation

Although online mediation is not new, there has been a shift to using online platforms necessitated by Covid 19. There are several platforms used for online mediations such as Webex, Gotomeeting, and Google Meet. However, Zoom has emerged as the platform of choice. Participants in mediation have differing degrees of familiarity with Zoom. For attorneys, chances are they have participated in court hearings conducted using Zoom. Parties may have been to virtual business meetings and social gatherings with Zoom. There may be some who have stayed away from the technology for various reasons.

If you have a Zoom mediation scheduled what expectations can you make about the process? Here are five things you can assume before you Zoom.

  1. Zoom Mediations and Face-to-Face Mediations Are Different AND the Same

There are many benefits to Zoom mediations. We are able to move forward with mediation when it is not safe to meet in person due to Covid 19 or other reasons such as a history of violence. Reduction in the time and expense of travel is significant. The convenience of being in one’s own surroundings brings comfort. This familiarity makes it easier to regulate the high emotions often present in family mediations. Research shows that dogs reduce stress. Imagine the benefits of having your own (well behaved) pet at your feet as you participate in mediation. Lunch breaks can provide an opportunity to reach in your own refrigerator for that leftover meatloaf and mashed potatoes – comfort food from last night’s dinner.

A challenge for the mediator in Zoom is the ability to establish trust and build rapport, the number one trait of a successful mediator. In some ways it is easier to connect such as picking up on amplified facial expressions onscreen. However, when looking through a computer camera lens, it is more difficult to make eye contact. It is a good idea to have your camera lens at eye level, so you are not appearing to look up or down at participants. Building a connection may take more small talk with Zoom. A pre-mediation Zoom meeting with each side individually is vitally important. Participants not only become familiar with their mediator, but technology issues can be worked out pre-mediation as well.

Body language conveys a large part of communication.  With Zoom, you see less than the top half of a person. This view may not include helpful visual cues such as hand motions. Hand gestures used to indicate excitement, frustration, or anxiety are lost if not within camera view. If you are a hand talker, you may consciously position yourself so that your hands will show. To a lesser extent, leg position such as crossed, open, or fidgeting also offers information about what a person conveys. This will be lost in Zoom.

Yes, there are many differences in Zoom and face-to-face mediations. Yet, there are just as many similarities. Connection, collaboration, and moving to a better future can be accomplished in much the same way in both formats. Having more format choices only expands opportunities.

  1. Technical Difficulties Are Common and Can Be Addressed

Expect and prepare for technical difficulties. It is a good idea for the mediator to log in well ahead of time to adjust for any apparent problems. A strong internet connection is key. If you have the capability to hard wire your internet connection, then do so. Most of us use WIFI for a connection. If so, you know the frustrations of a poor signal or WIFI being “down.”

If a mediator is working from their office, an assistant may be utilized to execute some of the functions of Zoom such as breakout rooms or screen sharing that allows the sharing of documents. This assistance with technology frees the mediator to fully focus on the people before them.

Before a mediation begins have the cell phone number of each participant and give them yours. Texting regarding technical glitches is a good backup plan. Although not in the mediation context, I experienced the power of a simple text recently in my Zoom yoga class. I usually enjoy this peaceful practice with my eyes closed. Perfect – except recently there was NO audio. When the teacher glanced at her phone and saw it light up with a text, she stopped to look. She made a simple adjustment to unmute herself and Zoom class went on as usual. I closed my eyes and let her peaceful voice guide and de-stress me.

Participants in mediation come with varying degrees of technical skills. If someone is not familiar with Zoom expect resistance to using it. Ease with the technology can go a long way in allaying fears. There are many good videos on Zoom. Include a list of resources regarding the technology in your pre-mediation materials and discuss any reservations participants may have regarding Zoom in pre-mediation conferences. Have an identified plan in case of technical difficulties.

  1. Zoom Is A Secure Platform

The mediator will be the host of each Zoom meeting. The host controls features that will make Zoom a secure and confidential space. Many of the features that enhance security are set by default on Zoom. For example, a password is required to get into a Zoom meeting. Your mediator host may embed this password in a meeting link sent to participants enabling them to join a meeting or require entry of the password in addition to the link. Once you enter a virtual meeting you will be in a waiting room space on Zoom and are not allowed to enter the meeting until the hosts lets you in. While in the waiting room you will not have access to other participants and they will not have access to you. For caucuses (individual meetings with parties and their attorneys, just attorneys, or any combination of participants that does not include all) Zoom offers breakout rooms. These are private mini-Zoom sessions within a Zoom session. The host, typically the mediator, assigns people into their breakout rooms when needed. Once in a breakout room only the people assigned to that room are visible to each other and heard. The mediator can travel from breakout room to breakout room.

  1. The Unseen and Unheard Can Be a Confidentiality Issue

Although the host mediator will make every effort to make each Zoom meeting secure and confidential, the host cannot control what the host does not see or know. This includes a participant entering a meeting from an insecure location such as a public WIFI. A coffee shop, airport, or library may not be a secure location. Even if a participant is in their office where other people are within hearing distance, confidentiality is compromised. Thus, the importance of having a private and quiet location dedicated to a Zoom mediation is very important.

Parties going through family conflict are influenced by others. A new romantic partner, relative, or close friend can have a profound impact on the mediation process. Even in face-to-face mediations I always clarify beforehand who will be participating in the actual mediation. My fallback position is that only parties and their attorneys, if they are represented, participate. However, there are times when a third party may have a calming and reasonable influence participating in the mediation. If all parties, including the mediator, agree third parties may participate. Taking into account the uniqueness of each case, the decision of who will participate needs to be addressed in pre-mediation.

What a mediator cannot control is the presence of unauthorized third parties in close proximity advising a party and breaching confidentiality without the knowledge of everyone else. Usually parties will be asked to sign a confidentiality agreement prior to mediation that specifies confidentiality safeguards.  A represented party may participate at the office of their attorney which might add an extra layer of confidentiality. Mediation is supposed to be a fair process. If a participant “cheats” regarding who is privy to their conversations, the process is undermined. While lying and cheating are, unfortunately, a part of some face-to-face mediations, Zoom presents new challenges. These challenges are not insurmountable; they just need to be thoroughly addressed.

If a party is participating from home, there may be children who inadvertently hear what is going on or interrupt the process. Just as in face-to-face mediations, making a detailed parenting plan for children is a good idea. Not only may hearing sound bites of discussion about them be disturbing to children, a participant is better able to focus on important decisions without the multitasking of childcare.

5.  Flexibility Pays Off

As I discussed in a previous blog, the ability to be flexible is a positive tool throughout the mediation process. Our brains default to the “but we have always done it this way” mode.

Covid 19 has forced is to try new things. Face-to-face mediations, many times lasting all day and sometimes into the night, are being replaced by online options. Online mediation was initially viewed as a stop gap measure in response to Covid 19. I believe Zooming mediations is emerging stronger as we experience a different world and is here to stay long after Covid 19.

Zoom provides many opportunities and expands options. This includes the development of hybrid models offering part face-to-face and part online mediations. Long face-to-face sessions in which the brain shuts down can be broken up easier given the transportation and time advantages of Zoom. One must be careful to take into account the very real Zoom fatigue resulting from looking at a screen for an extended time. Unlike face-to-face mediations you are constantly looking at your own face on zoom. This is not only tiring but may be distracting. (Hmm, is that lettuce between my teeth?) There are ways to combat both Zoom fatigue and face-to face mediation emotional depletion. Each case is unique. A protocol for your case now includes multiple options to maximize the success and satisfaction with the mediation process. Embrace the flexibility and expansion of options Zoom provides.