PGP Mediation Blog by Phyllis G. Pollack
On July 14, 2020, I gave a zoom presentation entitled “Some Thoughts on Ethics in the Age of Online Dispute Resolution.” As an aside it was for a wonderful cause- “Will Work for Food”. The concept is that the attendees- rather than paying a registration fee to attend the presentation (which occurs every week), donate money to a food bank of their choice. And amid this pandemic in which the lines at food banks are miles long, such donations are very much needed. A fantastic concept! #willworkforfood
But, back to my presentation. One aspect that I discussed was the practical considerations or the do’s and don’ts of conducting a mediation online. These video mediation guidelines were authored by the International Council for Online Dispute Resolution (ICODR) and are simple and practical.
The first one is perhaps the most important: Accessible. Does each party even want to use an online dispute resolution (ODR) process to resolve the dispute? Is each party willing to use technology to try to settle the conflict? And if so, does each party have a good connection to technology? Is the audio and video clear? Does each party have enough bandwidth or is the wi-fi liable to cut in and out on them? Is the technology being used free to the parties? Most important, if the parties do agree to use such technology, send frequent reminders- perhaps two days and then two hours ahead of time.
The next practical guideline is equally important: Competent–make sure you- as the mediator- are comfortable using the technology so that it does not interfere with resolving the dispute. And, make sure the parties are comfortable using the technology as well; perhaps conduct a trial run or dress rehearsal with the parties prior to the mediation to help them feel comfortable using the technology so that it does not interfere with their attempt to settle the matter during the mediation.
The third guideline is one that has created a lot of publicity: Confidential. The mediator must take extra pains to assure the parties that neither the audio nor video portion of the mediation will be recorded and should take pains to obtain a written commitment from each party that she, too, will not record any part of the audio or video portion of the mediation or take any screen shots. Further, the guidelines suggest that if documents are to be shared during the mediation, the share screen feature of the technology should be used rather than e mail as it is more secure. The guideline also suggests that once all the parties are “in the room”, the mediation should be locked so that no interlopers can zoom bomb! (And in this connection, it is recommended that prior to the start of the mediation, all parties wait in the waiting room and be admitted by the mediator so that, again, unauthorized parties are kept out!)
The next guideline focuses on Fair/Impartial/Neutral by suggesting that the mediation begin as a “joint session” with everyone in the same room so to speak so that all the parties will know that everyone else is indeed present. If during the mediation, whether during a joint session or in caucus, a party’s video or audio connection disconnects, the mediator should wait until the party reconnects and then repeat whatever that party may have missed due to the disconnection. In this vain, the mediator and parties should have a Plan B for at least the audio which would be using the telephone to listen in. Zoom typically provides telephone numbers for the conference so that a party can use her telephone to listen in rather than using the computer video. The mediator should ensure that the parties have these numbers handy… just in case.
The last but certainly not the least guideline is Secure. The mediator should use a secure platform or technology in which to conduct the mediation. Ideally, it should have end to end encryption. The mediator should make sure that the parties are not using any applications that share locations or if they do, have the parties turn off the “share location” feature. Further, the mediator should make sure that whatever videoconference technology is used, it does not “time out” or “close down” after a specific lapse of time. For example, the “free” version of Zoom, closes out after 40 minutes; this could be problematic during a lengthy mediation. The guideline also suggests using the “gallery “view rather than simply showing the speaker throughout the mediation, as well as an added measure of security.
We are, indeed, in the midst of a “new normal”, conducting mediations in ways that were beyond our conscious thought a year ago. But here we are, mediating online and hopefully, these guidelines will make conducting an online mediation a little easier for everyone concerned!
… Just something to think about!
Phyllis Pollack with PGP Mediation uses a facilitative, interest-based approach. Her preferred mediation style is facilitative in the belief that the best and most durable resolutions are those achieved by the parties themselves. The parties generally know the business issues and priorities, personalities and obstacles to a successful resolution as well as their own needs better than any mediator or arbitrator. She does not impose her views or make decisions for the parties. Rather, Phyllis assists the parties in creating options that meet the needs and desires of both sides. When appropriate, visual aids are used in preparing discussions and illustrating possible solutions. On the other hand, she is not averse to being proactive and offering a generous dose of reality, particularly when the process may have stalled due to unrealistic expectations of attorney or client, a failure to focus on needs rather than demands, or when one or more parties need to be reminded of the potential consequences of their failure to reach an agreement.