Zoom mediation – a new way of looking at a familiar process

In this article Senior Resolution Practitioner Samantha de Coning looks at what transitioning to our ‘New Normal’ means for mediators and parties to a mediation.

No one knows how long COVID-19 will last for or what the New Normal will look like, but one thing we do know is that there will be lasting changes. Lockdown has meant we have needed to shift to working, learning and connecting remotely almost overnight with the expectation that restrictions of varying degrees will be around for some time. As dispute resolution practitioners while we have had to navigate the new challenges this has brought to our work, we are also able to embrace these in order to maximise the learnings and opportunities online mediation creates.

As a practitioner and relatively new Zoom user, I have continued my practice during lockdown by using a mix of telephone and video conferencing. The biggest challenge was how to recreate the face to face mediation experience using a virtual platform. As mediators, we weave our strategies and skills together in order to facilitate the journey that our parties embark on and we are used to doing so in a face to face setting. Changing to a virtual platform adds additional complexity to an already multi-faceted process. There are more things for us to plan for, additional steps we now need to take as well as the need to confidently manage the technology.

One of the main issues for me was the feeling of ‘flying blind’ because I wasn’t physically in the same room as the parties. This meant using a lot more focus and energy to make sure I was connecting with parties and listening differently to their verbal and nonverbal communication.

The impact of this is that Zoom mediation is more tiring for the mediator and the parties. Looking at a screen and participating in an online conversation requires more focus and energy. Being more ‘concentrated’ can also result in a more emotionally taxing process.

So how do we adapt our model to suit this new situation?  Prior to COVID-19, while individual meetings sometimes took place over the phone or Zoom, the joint session typically took place face to face. The mediator arranged for a neutral venue and date for the mediation. The mediation would usually conclude on the same day with the drafting and signing of the mediated agreement. Sometimes, a further session would be needed or follow up phone calls and emails, but the key discussions and agreements took place at the face to face session. Having one face to face session made sense especially when we factor in the travel time and cost for the parties and the mediator to attend.

Without the same pressures of time and cost as a face to face event, mediators can design more flexible processes for online dispute resolution which includes reflection time. If you think of the mediation as not one event, but a series of shorter events, mediators can have the time to think on the session and the challenges, and then plan for how these could be overcome in the next short session. Parties have the opportunity to ‘walk away from the table’ without ending the mediation. Individual meetings can continue, and the party and the mediator can review strategies for the next joint session allowing the mediator to use the necessary pauses as constructive parts of the process.

This was my experience during an online family mediation. Instead of a single individual mediation meeting, I had two shorter sessions with each party via Zoom. My main reason for doing this was to have more time to build rapport and trust with the parties. It also meant that I could follow up with each party on any work I had asked them to do as part of preparing for the mediation. I could check in with them on the process and technology, and could ask follow up questions. The ability to meet more than once was possible precisely because we were meeting via Zoom and so neither the parties nor I had the additional stress of travel, venues and time off work. It is often the costs associated with this that can be prohibitive.

The joint mediation also took place over two sessions. The parties got tired more quickly and started to lose focus. As a result, they were less able to manage their emotions and became frustrated. I found that I got tired more quickly too and felt that I was getting ‘stuck’ like the parties. We ended the session after reviewing the progress we had made and the issues that were still to be resolved. I made a clear plan with the parties to have further individual sessions with both of them after the weekend and then agreed on the next joint session date and time.

Before the next individual meetings, I reflected on the mediation and what I could do now to assist the parties. One of the challenges throughout the mediation sessions was how to assist the parties in recognising their conflict cycle, how this was impacting on their child, and how they could change this moving forward. At the individual sessions I was able to work more productively as the parties were rested and were able to continue the journey with me. The second joint session was a further two hours. The discussions were positive and collaborative, and the parties resolved all the remaining issues. The ability to create a truly flexible process which included reflection time, resulted in the parties being able to make robust agreements that they were fully committed to. These not only included care arrangements, but also creative ways to support their child and the establishment of a positive co-parenting relationship going forward.

While online mediation has different challenges, it also creates different opportunities and possibilities for how we mediate. The New Normal will still see travel restrictions and parties may be reluctant to travel or to be in face to face situations for a long time to come. Even when these restrictions become no longer necessary, we will have changed our practice and there will be a wider acceptance of remote work and perhaps no longer the immediate expectation that everything will be go back to face to face. This means that we see our toolbox being expanded to include more online work.

About the author

Samantha de Coning is Client Manager of Fair Way’s Family Services and a Senior Resolution Practitioner with mediator and adjudicator expertise. Having joined Fair Way in 2016, she has experience working with a vast range of disputes including building and construction, commercial and private, education, care of children and relationship property matters.  Samantha is a Fellow of the Arbitrators and Mediators Institute of New Zealand (FAMINZ) and is an accredited Family Dispute Resolution (FDR) provider.