There are "No Take Backs" in Negotiation

With safer-at-home ordinances, court closures, increased stress, anxiety, uncertainty and changes of circumstance, mediation has become an increasingly important dispute resolution process for many families dealing with conflict (old and new). With most mediations now proceeding virtually, via Zoom and other videoconferencing platforms, there are a lot of articles and advertisements touting virtual mediation as the brave new frontier of dispute resolution. Online Mediation has many positive attributes. It also carries challenges and risks different from those in a face-to-face process. It’s important to consider both the benefits and the challenges to this form of process, so you can be better able to mitigate the risks and engage in as productive process as possible in the circumstances. So, here it is: the good, the bad…and the necessary. The Good: Flexibility and Convenience: There is no doubt that remote mediations are convenient. Your mediation is facilitated from the comfort of your own home, allowing broader flexibility of schedules and access to your professional. No more fighting traffic for an hour each way for that two hour session at the mediator’s office. In fact, parties will have more options for choice of mediator since they won’t be limited by mediator location. Technology Tools: Online mediation platforms can allow for face to face virtual contact, while also allowing the mediator to share their screen when running support calculations, preparing draft provisions, and listing issues and proposals on a virtual “white board”. If agreed between participants, parties can screenshot, record, and transmit/share documents and proposals in real time, adding to efficiency of process (no excuses for forgotten documents ‘at home’) and active engagement (no need for note taking and less opportunity for mistaken recollection of events). No Childcare: Online sessions do not require coordination or cost of babysitters. Parties can arrange a private space for the session, while caring for their children at home. Of course, the children must not be in earshot of the session and the custodial parent must ensure safe play is possible without the need for supervision. In some cases, sessions might even be scheduled after bedtime or during naps. Built-In Security: Family dynamics are complex and screenings for domestic violence and physical safety in mediations are imperfect. In circumstances where parties are not living in the same house, computer screens provide a natural physical safety barrier. The Bad: Confidentiality Breaches: With online mediations, the mediator has less control of the peripheral space beyond the speaker view. Accordingly, it is possible that, despite the confidentiality rules and the commitments of the parties, unpermitted observers could be in the room during a confidential session. Hackers: Cyberattacks, like Zoombombing (when an unwanted guest joins the videoconference), can raise a serious threat to the confidentiality of the process, privacy of the parties, and security of their personal and financial information. Communication Limitations: Experts state that over 80% of communication is nonverbal (some say it’s more than 90%). Online mediation is limited in its ability to provide participants with a complete communication canvas, which can limit the mediator’s ability to interpret party cues and optimally facilitate their communications and negotiations. Distractions: Participants engaging in an online mediation may more easily become distracted by incoming texts, emails and outside noise. A party may even self-distract as a form of passive and defiant disengagement from the negotiations. It may be difficult for the mediator to pick up on a party’s disengagement in an online session, impacting productive communications. Bandwidth Disruptions: The internet is working on overdrive these days. Low bandwidth and other technology glitches can significantly impact the effectiveness of a mediation, interrupting the flow of the process and momentum of the parties. The Necessary: Unless your conflict can wait out the current crisis, online mediation may be the only form of mediation process available to you right now. Even after the social distancing restrictions have lifted, it may be some time before parties are opting for in-person meetings again. There are no perfection guarantees in any process and, with advance planning, many pitfalls can be minimized or avoided. When preparing for your online mediation session, ensure your mediator has set ground rules for confidentiality and party commitment to participation from a private and quiet space. Mediation confidentiality ought to be reiterated at the start of each session. If a participant or the mediator believes someone else may be in the room or within hearing, the session should be terminated and reconvened at a later time when confidentiality can be better secured. The mediator should use a unique meeting password and upgraded subscription plan in order to provide additional account security from potential hackers. The mediator should also continuously monitor the participants screens and end the session immediately upon the entry of an uninvited guest. Distractions can be limited by turning off notifications in your settings and asking that all participants do the same. Like with confidentiality, reiteration of the tenets of the mediation process (i.e. voluntariness and self-determination) can help to remind parties that they are in control of the ultimate decisions made and, accordingly, party participation is crucial to a successful process. Bandwidth disruptions and other technological glitches may be largely unavoidable, however can be managed by putting a contingency plan in place prior to the session (i.e. continuing the session via audio conference call; setting a backup continuance date/time; etc.). Plan with detail: If we lose connection, who will be re-initiating the call? How will the mediator be discounting time lost due to technology failures? Facilitation of party communication through a screen may be more limited than in-person, but the limitations can be mitigated through the increased use of tools, like caucus (single sessions), for checking in with individual parties for feeling, engagement and comfort level. Online tools like “breakout rooms” provide an easy transition to caucus. No matter the real or perceived limitations of online mediation, the benefits of an available consensual dispute resolution process in the current crisis far outweigh the challenges. Recognizing both the ‘good’ and the ‘bad’ allows parties to maximize advantages and plan for potential challenges, optimizing their potential for resolution.