Since the outbreak of the pandemic Covid19, life as we know it was bound to change. This being the situation worldwide, most of the institutions had to improvise and work from home with the available resources. With confusion everywhere, human relationships be it social, financial, contractual, labor or business, where mediation can intervene, were not spared. Consequently, mediation which seems to be needed more than ever to offer justice to people, had to go online to cope with challenges of lockdown policies and social distancing; and proved to offer important assets to the practice such as the flexibility, availability and efficiency.
It is true that online mediation consists of bringing the parties closer, while using the right platform that gives each one of them the time and the empathy needed to express their fears, needs and perspectives, in order to reach a mutual decision; but the process is not as simple as that. An important step that needs to be figured out before starting the online mediation, is which protocol the mediator should follow and how to inform it beforehand to the parties.
It is essential for the mediator to master the use of the platform he chooses, in order to avoid technical obstacles and to provide the parties with deep knowledge and help them to familiarize with the features. He shall login earlier, to welcome the parties with a smile just as he would do it if it was face to face mediation. He can stir small chats to ease the parties’ nerves while waiting for all the participants to join. The phone or other devices should be hidden by the mediator to avoid any distraction and assure a full concentration on the issue.
A protocol of etiquette to follow shall be agreed on prior the beginning of the first session and later on discussed during the pre-mediation. To decide the session would be audio only or a video conference, when the microphones should be on mute and when not, and when the screen and documents sharing would happen. Being the host and in charge of the screen sharing the mediator could stay in control of the session. He shall also manage the virtual ‘white board’, if available in the platform’s features, whenever the parties are ready to brainstorm possible solution for the conflict. If one of the participants has documents to share, the mediator would decide the way the sharing will take place, either by sending them to him directly or by handing over the screen sharing to them for a short period of time.
So here is a proposed Protocol of the online mediation; the mediator should:
- Contact both parties, explain how to download and use the platform and its features
- Explain to them how the session would flow, and discuss briefly the issue
- Send out to each party the consent letters to officially agree on mediation online and its terms
- Create meeting ID and password, share it with the parties, lawyers and negotiators
- Send a reminder of the meeting the day before
- Log in 20 minutes before the meeting to welcome the parties just as the mediator would do in a face to face mediation
- Make sure the parties are not suffering from any technical issues and have familiarized themselves with the platform, if not try to fix the problem
- Start the mediation with an introduction, remind them of the process, ethics and make sure no one is recording. Specify the time of the session and do not let it run longer to avoid the parties getting tired.
- Create a breakout room inside the same meeting for when a caucus is needed
- Create a virtual white board to brainstorm ideas when the phase of decision making is reached
- Send out the mutual agreement to the parties to sign through E-signature in case a final decision is reached.
Moreover, in case of a collaboration between co-mediators in online mediation, it is essential to be organized in order to establish a successful system of communication with each other and with the parties. It is recommended that co-mediators:
- Know each other, have worked together on a case before or at least have been in contact before taking up on the online mediation together.
- Understand, even if briefly, each other’s strategy, characters and vision when tackling a mediation, in order to make the collaboration between them easier.
- Understand the case together before starting the session, as they should agree whom of them will contact the parties and how, through which platform, by mail, telephone or video conference.
- Have the chance to introduce themselves and the process, which will allow the parties to get familiar to interact with both of them and have a first impression other than viewing their picture on the screen.
- Divide the tasks between them, follow a strategy set prior to the session, based on each one’s strengths and skills. It is essential that the co-mediators appear in harmony in front of the parties, who needs to see them as a unity working in synchronization for their interest without creating additional clashes or obstacles to their conflict. It is hard enough for the parties to communicate, especially during the first session, and talk about their conflict in front of strangers, so the harmony and cooperation of the mediators is essential to them to gain trust in the process.
- Abstain from confusing the parties by assuming that only one of them is in charge or holds more power. Because when mediating online, the platform usually allows one person to be the host, control the meeting, the invitations and the screen; alternating tasks shall remain a necessity so each one of the co-mediator gets an equal role.
- Exchange brief and specific messages during the session, in case there is a need to change the strategy or if an information is missed by one of them who could be reformulating at the time. This shall happen by sending private messages to each other, without interrupting the ongoing conversation, and without the knowledge of the parties to avoid making them feel judged.
Covid19 imposed acceleration of digital transformation, in all sectors and industries. Empowering mediators, raising awareness of opponents, coping with technical environment’s requirements, and updating of existing rule of conduct and protocols are some of the challenges to be observed and answered. For it is clear that this practice shall not lose its demand even if the physical distancing restrictions were lifted, and shall continue along with the traditional mediation to grow and expand.
I am a Lawyer in Lebanon and a licensed mediator, currently working as a contract advisor in Qatar. I have conducted many studies lately on online mediation since the outbreak of the Covid19 pandemic and how the mediation shall adapt to the online environment. I am also an active member in L.I.T.A (Lebanese Information and Technology Association), an association that works to develop the legal aspect of the cyber world and insure cyber security.