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Why is This Mediation Different from All Other Mediations?

by Michael Lang, Laurel Amaya

June 2020

Like many of our contemporaries, we were using telephone, email, Skype and Zoom in our practices long before the abrupt changes brought about by the pandemic.  Their use was purposeful and strategic—and then, we had a choice.  Physical distancing has upended our practices.  And, lacking the option of meeting face-to-face, we have quickly shifted our client contacts to phone calls, email and video conferencing.

With these changes, we have had to give considerable time and energy searching for new and updated guidance on managing the technology, addressing unique privacy/confidentiality concerns, aiding clients unfamiliar with or skeptical of video conferencing, and adding skills for handling the complex interactions of a mediation using a virtual platform. 

Along with the online concerns, we focusing on how the issues raised by the pandemic might affect our approach to mediation.  We wonder does the change in methods push us to let go of our models of practice in favor of “whatever gets the job done?”  Is it possible that the move to online sessions could lead to practices more likely driven by a drive for expediency, efficiency and the bottom line?  Is it possible that an emphasis on pragmatism could result in our paying less attention to communications among the participants and to the quality of the interaction between them?  Do well-formed and practiced models give way in the face of pressures to meet participants’ urgent needs for an outcome?

The title of this brief essay is taken from our reflection of the traditional “four questions” asked during the Passover Seders recently celebrated.  During the Seder dinners, children ask the traditional questions about why certain practices and foods are associated only with this holiday.  With the pandemic and its unique circumstances, we ask of ourselves and our colleagues why should conducting online mediations now be different from managing all other mediations?

There are obvious differences in strategies and techniques. Of course, we are subject to the quirks of the online platform.  The quality and pace of our interactions can be affected by available bandwidth.  Confidentiality cannot be as easily assured.  On the other hand, we can mediate in our pajama bottoms and slippers!  For this essay, however, we aren’t focused on differences in techniques and the added challenge of managing the online process.

Instead, we are concerned with the possibility that these differences in format and delivery may inadvertently lead to changes (both subtle and profound) in our thinking about our practices; that our views about our role and responsibility may unconsciously result in the setting aside principles we otherwise observe.  For this reason, mediators need to be especially mindful of the values and principles that have guided our practices when we were able to meet face-to-face.

Three conditions are likely to challenge our attitudes and beliefs about how we mediate.

Reduced Access to the Courts

Court access is extremely limited.  Without the option to litigate, parties are compelled to find solutions to their disputes through alternate dispute resolution processes, most especially, mediation.  Pressure to settle increases along with heightened anxiety about the duration of the shut-down. We mediate in the “shadow of the law” but when judicial intervention is unavailable, except in the most exigent circumstances, should we alter our approach?  For example, are we more willing to offer solutions and advice or to give a mediator’s opinion?  Parties are even more frantic for the security of solutions.  Does the transition to an online process mean we are now willing (or more willing) to act in ways that assure solutions?  Or, might mediators respond to the participants’ angst with techniques designed to foster engagement, constructive communication and relationships?

Mediator neutrality

As mediators feel added pressure to respond to the needs of participants, notions of neutrality may be tested.  The ethical standards for mediators requiring respect for participant self-determination have no exception for online mediations or exigent circumstances.  We are reminded of the AAA/ABA/ACR Model Standards that define self-determination and our role in honoring it 

Self-determination is the act of coming to a voluntary, uncoerced, decision in which each party makes free and informed choices as to process and outcome.  A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos…

Do the same principles apply when achieving the certainty of a settlement takes on greater urgency?  In every mediation, there is a common focus among the mediator and participants to find a suitable end to the dispute.  The question is whether heightened anxiety and stress resulting from the pandemic is a basis for yielding to the temptation to offer solutions in order to do well for the participants?  Will mediators be tempted to act in a more “therapeutic” fashion by being calming and reassuring? And if that occurs, would such interventions cause a subtle shift in otherwise careful balancing required to maintain neutrality?  Do we then interpret the meaning of self-determination differently in this crisis?

Our ability to remain neutral will be tested as economic pressures deepen and as anxiety intensifies over the length and extent of the shut-down.  Our skills at managing and supporting effective communication will be tested.  Flexibility and patience—hallmarks of our practices—will be more crucial than ever.

Mediation is now a Primary way to resolve disputes

The changes we are experiencing will likely move mediation to a role of “primary” dispute resolution method.  If not now, then within the next several weeks, pressure will build to end marriages, to resolve financial disputes, to settle workplace conflicts.  Mediators will, after an initial drop in referrals, likely experience a wave of requests for their help.  The desire to relieve the pressure of conflict through mediation will correspondingly increase the sense of urgency to deliver results.

Online mediation will require adjustments in the delivery of our services.  We will need to make accommodations for the challenges resulting from a nearly complete shut-down of our society and the consequent emotional, social and financial pressures. We will need to address how the challenges of parties juggling working at home with family responsibilities, privacy and financial issues they have will necessarily cause us to compromise, bend or otherwise vary our thinking about our work.

So, what is the answer to our Passover themed question-Is the way we mediate now different from all other mediations?  Mediators will certainly need new techniques and strategies, as well as learning to adapt their skills to the online platform and to the new challenges facing mediation participants.  However, in the search for a new approach, mediators should not compromise the standards, principles and values that have shaped our practices.

Michael Lang

After 40 years I ended active practice as a mediator.  Now, I am engaged in writing, editing and mentoring. 

My current project is Living Together, Separating, Divorcing: Surviving During a Pandemic, an ebook published on Amazon.  Along with my publishing partners, Peter Nicholson and Fiona McAuslan, and with the collaboration of nearly 80 professionals from 10 countries, we have produced a book of advice and tips for families stressed by the impact of the coronavirus.

Recently, I published The Guide to Reflective Practice in Conflict Resolution, the first publication in the Practitioners Guide Series, a joint venture of the Association for Conflict Resolution and Rowman & Littlefield, was published in 2019.  Susanne Terry and I are series co-editors.  In connection with the book, I lead monthly reflective practice groups via video conference, present webinars on reflective practice, and created a video series, In Their Voices. These extended conversations are broadly connected to the principles of reflective practice such as learning from experience, applying theory to practice, importance of research, value of mentoring.  Videos in this series may be viewed on my website: www.thereflectivepractitioner.com/videoconversations and on YouTube.

Peter, Fiona and I are also developing a series of books for people who are considering or in the process of separation and divorce.  That series, Divorce and Separation: A Practical Guide to Making Smart Decisions, supported by the exceptional work of local editors, now includes editions for 5 states, with versions for 10 more states in process—eventually we will get to every state in America.

Laurel Amaya

After years of working with divorcing clients in the traditional litigation process, Laurie Amaya became determined to bring a different approach to divorce and dispute resolution. Now as a full time mediator, consulting and Collaborative divorce attorney, Laurie’s goal is to help clients find solutions and reach agreements without going to court and has assisted hundreds of clients in reaching mutually acceptable agreements! Laurie is an APFM Certified Advanced Practitioner, APFM Senior Mediator, and a Certified Senior Mediator with Mediate.com. She participates in a monthly Reflective Practice Group for family law mediators. She was a founding member of Pasadena Collaborative Divorce and facilitates a monthly mediation study group in Pasadena, California. Laurie received her B.A from U.C. Santa Cruz 1988, JD from Southwestern University and has been licensed to practice law in California since 1993 and Arizona since 1994.

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.