Very simply mediation is a process whereby a third party assists the parties to develop a resolution that both parties can agree upon. The mediator is a trained neutral in contention. The mediator helps the parties expand their horizons from looking at the problem with a narrow focus and instead helps the parties look at the issues more broadly. This helps the parties develop a solution that both parties either like or can live with going forward. Advantages have been found with virtual mediation over face-to-face mediations. This article explores the advantages of using online or virtual mediation. 

Background  

Companies have been using online mediation methods to resolve disputes when high-volume long-distance conflicts arise. A classic example is eBay. Online dispute resolution was in existence prior to Covid in family disputes, workplace conflicts, and other venues, but it was clearly the exception. Today online or virtual mediations are the norm. With more experience in the virtual world of mediation in an ever-changing world, clear advantages have been noted.

With mediations by email and text it may be possible to mediate over a longer period giving participants time to think and explore the information and other options between responses.

However, there may be miscommunications without being able to hear the tone or see the other party. For that reason, with text or email mediations phraseology can be extremely important. Today mediators that have considerable experience with high volume text and email mediations have learned how to work with the parties to keep tensions to a minimum.

With virtual mediations participants can see and hear each other and the mediator.

Virtual mediations offers a better opportunity to connect with the other party.

We have learned a host of issues related to virtual mediation with the increase in volume and experiences. Issues are addressed ahead of time. Other parties who are not associated with the mediation should not be within hearing proximity. Other electronic means for chatting need to be addressed. Typically, everyone turns off their other electronic media except for the mediation process. A host of other issues can arise. Time frames for interaction should be limited given the intense level of concentration needed when focusing on a screen for longer periods of time. What are some of the advantages of virtual mediations?

Advantages of virtual mediations

One of the big advantages is that participants can determine a time and place that works for them rather than being forced into a specific space that may not feel comfortable and at a time that may not be the best for them.

Participants do not have to travel to a potentially uncomfortable setting.

Participants may participate from home, their office, or another space that works for them, rather than traveling to a lawyer’s office or some other potentially unfamiliar location. Participants appreciate being in an environment that is comfortable for them. This often helps to lower anxiety, tension, and potential frustration.

Since sessions tend to be focused on a screen, it has been found that limiting sessions to 90 minutes helps. This also allows participants to have a break between sessions to digest what just happened, potentially have a caucus with their team off line in between sessions and be more prepared for the follow up sessions.

Attorneys have commented that often better decisions are made using this virtual process

and having multiple sessions than in having one continuous session with the parties.

What makes for a good mediation

The key to a good virtual mediation is the mediator meeting with the parties ahead of time and building an authentic, trusting relationship with the parties. Participants want to be listened to and the mediator can make sure that happens by meeting with the parties ahead of time.

The mediator builds trust and can explore the facts from each party’s perspective, identify issues, empathize, and reframe commentary into a more neutral perspective, and help the parties identify their interests.

 Many times, parties have a narrow focus on interests initially, but a trained mediator may help the parties find broader solutions beyond the more narrowly defined initial problem perceived before mediating.

A good mediator can leave with the participants feeling that they have produced a good solution themselves. When this happens, the participants are more likely to buy into the resolution and carry out activities consistent with the final solution. Often the participants do not even recognize that the mediator had a vital role in the process since the participants were able to listen to each other, feel empowered, and offer their own thoughts to shape a final agreement.

Growth in on-line and virtual mediation

In this study by Noam Ebner he points out that it is hard to find an area of practice “in which e-mediation is not offered or would not be considered suitable.”  The study indicates that virtual mediations are particularly important when emotional and transactional elements are involved. For example, in family mediation and workplace mediation. In this authors experience this is true for families with business valuation mediations between an in spouse (owns the business) and an out spouse (noninvolved with the business) related to business valuations. With

high settlement rates, high rates of party satisfaction, and the willingness of the parties to consider mediation again,

these are reasons why virtual mediations on technical issues like valuation are growing exponentially.

Issues that are emotionally charged, technical in nature, and when the parties know each other well are particularly suitable for mediation. The study suggests this is an area for significant growth for an e-mediation practice. At the conclusion of the article Ebner states, “e-Mediation, the most widely offered service in the ODR (Online Dispute Resolution) field, would seem to be facing a growth phase as small-scale practitioners take their traditional practice on line in part or altogether.” It is also recommended that practitioners share their experiences to help promote this expanding field. That is in part the purpose of this commentary.