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Online Mediation Worth the Screen Time

by Ehsan Ali, Alnoor Maherali

September 2020

Article originally published here.

COVID-19 caused a surge in commercial and interpersonal conflict.  At the same time, courts are closed, halting society’s traditional route of dispute resolution.  In these times, mediation has become increasingly important as a method by which people can solve their disagreements in these trying times.  But mediators are not immune to the virus, and they too were forced to adapt. Because of this, many mediations are now done online. Though there was initial reluctance and discomfort, it turns out that mediations conducted virtually are not so different from those performed in-person.  But there are special considerations that smart mediators have learned to take into account in this new reality, which can be managed with proper planning and better awareness.

Contingency Planning - Managing Issues with Hardware and/or Software

Technical issues such as difficulty connecting, issues with the camera, the microphone or something else entirely can stop a mediation before it even starts. And most people who have done a video conference have experienced at least some of these issues.  As such, mediators are finding it helpful for parties to test out their devices prior to the session to avoid these problems. 

But even with proper planning, technical issues can still arise in the mediation. Therefore, a best practice on the part of the mediator is to establish a plan B and plan C, in case anything goes wrong.  For example, in the event that a party is unable to establish a video connection via Zoom, the mediator can (a) share their personal number so that the party can let them know of the issue and then (b) pivot to a telephone call to conduct the session.  Or they can change video conferencing applications.  The important feature is for the parties to know ahead of time there are alternatives in the event of an error, and thus be able to focus on their dispute.

Addressing Internet Connectivity

Even when parties can connect, internet lag can still plague a session.  One party may have difficulty being heard or hearing the other party and/or the mediator - their voices lost to a distorted echo caused by latency in the network connection. The best solution to this is preparation – the mediator should flag this issue as a potential problem so that if it does happen, it can be recognized and ameliorated.  A mediator can call for a break to allow the party experiencing the lag to get a more stable connection; or, if necessary, can pivot to the secondary mode of mediation.

Lag can be particularly frustrating when parties are speaking directly to each other.  In person, some mediators make it a practice to set a guideline for the parties not to interrupt each other.  This is even more useful in an online session where lag can make things worse.  When parties agree not to speak over one another, it makes the session more effective for everyone.  And because mediation can unearth difficult emotions – we recommend parties maintain some mechanism by which to take notes.  That way, they never lose the important point they want to bring up or the question they want to answer.  Mediators and parties can also agree to utilize hand signals to avoid audio-overlap; for example, a raised hand to show the party has something to say.  

Managing Distraction and Fatigue

Because parties are often in their homes with a greater array of potential distractions, keeping parties tuned-in to an online mediation session is generally more difficult than a mediation conducted in-person.  We recommend establishing ground rules such as turning off notifications on one’s device, putting one’s phone aside for the duration of the mediation (unless they are using their phone to access the session), and using headphones to block out other sounds. In the event a party must leave their computer to tend something, a best practice is for parties to pause the mediation until they return.  

In addition, the energy drain while in online video mediation seems to be significantly higher than for in-person sessions. “Zoom Fatigue” reduces the amount of time a person can spend on video conference before they are worn out – with the consequence of drastically reduced productivity after that point.  The best practice for dealing with this is structuring the session accordingly.  Online sessions are best kept shorter than in-person mediations.  Between 1 and 1.5 hours appears to be the ideal length.  If the parties have a limited span of time in which to find a resolution, sessions can be scheduled at a greater frequency.  And it can be helpful to check-in with the parties more frequently and to schedule regular breaks and off-screen time.   

Building Trust: Overcoming Interpersonal Disconnect

Mediators spend a great deal of energy during a session on working to build trust between the parties.  When the rancor that often accompanies conflict has prevented the parties from seeing potential solutions – a big part of the mediator’s value is knitting the parties together by uncovering the connections and commonalities between them. 

A great deal of academic work confirms what many of us know from personal experience – that discussions over the internet often lack the tenor of a discussion between two people.  All too often, the online medium in itself does not decrease (and does enhance) the animosity between disputing parties.  This means that an effective mediator will need to spend more time on building trust and establishing rapport during the session.  Indeed, this may have a greater impact than any other specific skill mediators bring to the table in their online mediations and negotiations.  This means that the mediator may take a less direct path through discussing the issues in the mediation in order to establish a productive working relationship between the parties. Parties that recognize this are likely to reach better, more sustainable outcomes from their mediations. 

Maintaining Confidentiality

Confidentiality is a core value to mediation. While it has long been featured in every mediator’s opening statement, online mediation makes it very important to be specific on what this means in this new context.  It is a best practice to ensure: (a) that the parties are not recording the process without unanimous consent; (b) that no unknown parties are covertly surveiling or instructing the mediation session; and (c) that everyone knows that notes taken during the session should be destroyed.  Good online mediators make sure the parties know this at the top of the session. 

Online mediations are likely to grow in number and scope given safety guidelines, personal comfort, and the upswell of conflict given everything that is happening.  Mediators are now more important than they have ever been in encouraging empathy, highlighting commonalities, and helping find workable solutions.  With a few adjustments, online mediation can proceed in much the same fashion as an in-person mediation.  However, mediators and parties should acknowledge that there will be some additional technical considerations; and remember that everyone is doing their best to work out the situation in real time.  If mediators engage in a bit more process-leadership and are transparent about the potential challenges, online mediation can provide a more accessible route to resolving conflicts speedily, safely and effectively.  That’s worth a little more screen time. 


Ehsan Ali is a practicing New York lawyer, arbitrator, dispute resolution specialist, and mediator. He resides in New York City and mediates with the New York Peace Institute and Venn Mediation. He attained his B.A. from American University, majoring in Communications, Law, Economics, Government and Philosophy.  He went on to graduate with distinction from Columbia Law School. While an associate at a leading New York law firm, he worked on major national and international arbitral cases, successfully representing clients in major matters valued between $25,000,000 and $50,000,000.  Thereafter, he has served as outside general counsel to a number of startups handling a full range of matters including dispute resolution and contractual negotiations, particularly in the entertainment space.  This richly varied experience has given him a unique perspective on conflicts, especially those that are particularly heated and where it seems everything is at stake.   His current and former clients include Fortune 500 companies and hot up-and-coming startups operating in the New York area. 


Alnoor Maherali is a highly skilled diplomat, dispute resolution specialist, and certified mediator. He resides in New York City and mediates for the New York Peace Institute and Venn Mediation. A ‘student of the world’ his personal and professional travel has taken him to almost 50 different countries, making him especially adept at navigating cultural, ethnic, and racial differences. During his time in the foreign service, he worked overseas in Afghanistan and Bangladesh, specializing in conflict resolution, political dynamics, human rights, and disaster response. He studied Mathematics at Queen’s University in Canada and has a Master in Public Administration (MPA) from the Harvard Kennedy School in Boston. It was in his MPA that he discovered his passion for mediation, while taking an advanced workshop in Multiparty Negotiation and Conflict Resolution. Since then he has committed himself to mediation full-time, with training and professional development, co-launching his own mediation firm, and by joining community mediation rosters.

The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., OnlineArbitrators.com or of reviewing editors.