Trust is simply a “firm belief in the reliability, truth, ability, or strength of someone or something.”[i] Relationships are built on trust. This is hard enough in face-to-face disputes where one can hear the words, imply understanding with the tone, and interpret full body and facial expressions. With virtual mediations there are technical, administrative, interpersonal, and other issues that further hamper a clear understanding. These can undermine trust. The question is how can you build trust with virtual mediations? This article addresses three issues for your consideration regarding virtual mediations.
Mediation defined
Mediation by a qualified mediator is simply a process whereby the parties are able to present, listen, discover, and develop alternatives based on their own interests to resolve an issue.
It is confidential, generally voluntary, and results in the parties making a self-determination.
The alternative of court or arbitration leaves the decision up to the trier of fact. With self determination the parties have a greater sense of control, and they are more likely to follow through voluntarily to carry out their agreement. The key for mediation is that the parties develop their own solution. This can be a win-win scenario, or it can be something both parties can live with going forward.
It is important to choose the right mediator.
In short, a mediator should understand the mediation process, have experience in the area in question, and should provide the framework up front so that the parties understand and feel comfortable with the mediator and the mediation process. Mediation may be facilitative, transformative, or evaluative in nature. If the issues are associated with business then a mediator that has an expertise in business mediations specifically can save the parties considerable time, money, and resources. Other expertise for example may be in family law, restitution, and other venues.
Initiation of mediation
As a participant in a mediation there are steps you can take before a mediation. It is a good idea to learn all you can about the other party. Make use of social media (online search. LinkedIn, Facebook, and other sources), your personal network, your extended network asking others making use of sources beyond your own scope.
Your intention is to learn as much as you can about the other party before the mediations
in order to find ways to try and connect with the other party for a more positive interaction during the mediation process. Consider what you see as your concerns and what you believe the other party perceives as the facts, the issues, the emotion associated with the issues, and their interests related to the issues.
As a mediator is important to build trust with the parties beforehand. In business mediations the mediator will meet with each of the parties separately. This step is needed to see if mediation is even possible.
If it is possible the mediator will work to develop trust with the participant party by listening actively with each separately.
The mediator will be affirming and share personal experiences to be reassuring to the participants. Mediators focus on being interested in the participant. Listening with empathy is a key characteristic of a good mediator. The mediator checks his or her assumptions and keeps an open mind. Mediators by nature are curious. Mediators suspend their own judgments.
It is important for the mediator to take time to go over the process of mediation as well as the technical elements associated with the mediation platform. The mediator will make the parties comfortable with the platform, how it is used, and address any concerns. The mediator is reassuring about the process of mediation and the process of the virtual environment for mediation.
Communication clarification
With onsite mediation, it is possible to gain insight by the words, tone, body language, and facial expressions with all of the parties and the mediator in the same physical room.
With a virtual mediation everything is tempered by the ability of the lens and microphone of each participant coupled with the quality of broadband
transmitting each participant visual and oral commentary. Only one person can speak at a time. Individuals do not necessarily make direct eye contact with one another in a virtual mediation. Participants should be given more time to communicate their concerns. The mediator may ask more questions related to feelings to ensure feelings are being properly understood. A mediator in virtual mediations may ask more questions, pause more often to ensure understanding, and help the parties clarify intentions.
Virtual mediation is more prone to misunderstandings. Participants tend to view each other negatively in any form of mediation. In virtual mediations this is exacerbated. With less information a natural tendency is to expect the worst. This means the mediator needs to ensure understanding and focus on positive intent. When negative emotions arise, these should be acknowledged, yet work with the participants to focus on the issues. Be hard on the problem and soft of the people.
Dehumanization
With a virtual mediation the process has a greater detachment by the participants. This tends to create more distrust than face to face mediations. That is one reason to provide more time up front to promote understanding. The mediator moves slower and asks more questions.
From the very beginning the mediator needs to come across as being there to help,
by being straightforward, open, accepting, and responsible. Active listening is key. Restating what was said for clarification helps the parties to understand each other better.
Asking participants how they are coping with the pandemic, kids at home, working from home, changes at work, and other similar questions helps to keep the conversation flowing. By sharing our humanity with each other this presents a framework that we are all human. With being human come all of the elements associated with attitude, compassion, kindness, decency, concern, and caring as well as revenge, self-interest, disgust, irritation, frustration, irritability, and anger. It is important to stay focused on the issues, recognize the feelings, and uncover interests.
Behind every position is at least one interest. By uncovering interests, it is possible to first understand and then to confirm the interests of the other party and yourself.
When interests are uncovered it is possible to work towards a solution that can address these interests. By humanizing the process, listening, and understanding this goes a long way towards building trust resulting in a successful mediation.
The mediator should ease tensions from the very beginning, promote trust and understanding, be more patient in virtual mediations, understand human emotions, and be conscious of the tendency to be detached in a virtual mediation. This will lead to a more positive outcome in a virtual mediation.
To learn more on this topic see this article by Katie Shonk from the Harvard Law School Program on Negotiation citing a chapter from the forthcoming book Online Dispute Resolution: Theory and Practice by Noam Ebner at Creighton University.