Zoom Away! Observations and Tips on Mediating Through a Screen
Friday, March 25, 2022
by: David LeMaster, LeMaster Mediation

Section: Winter 2022

Dave is a full-time mediator and arbitrator in Seattle, Washington. Prior to becoming a neutral, he was an active WDTL Member for many years. For more details, you may visit his website, http://lemastermediation.com/.
Pre-COVID, it was easy to take for granted the value of a handshake, a pat on the back, real eye contact, and body language in establishing rapport, an essential ingredient to a successful mediation.  Indeed, the Merriam-Webster definition of “rapport” captures the essence of the mediation process:
A friendly, harmonious relationship, especially a relationship characterized by agreement, mutual understanding, or empathy that makes communication possible or easy.
So, how do we best establish rapport and, in turn, maximize the chances of a successful mediation when the technology itself – with its inevitable glitches, freezes and occasional vanishing participant – sometimes impedes communication?
The following observations and tips are based on one overriding goal, which is to make the interaction as “real” and comfortable as possible because this will make it easier to facilitate the discussion and reach an agreement.
First and foremost, Relax.  It is virtually impossible to establish rapport when the parties are overwhelmed by the stress of the technology.  Simply embrace the inevitable “hitch” and acknowledge that when it happens, it will be okay.  In every continuing education seminar relating to Zoom trials I have attended; the judges have emphasized this same point.  Tip:  During the pre-mediation conference with your mediator, develop a plan for addressing glitches and be sure to go over it with your clients.  This will go a long way toward reducing anxiety levels before the mediation ever starts.
Next, Remove Distractions.  Videoconference interactions are artificial.  You can manipulate backgrounds, volume levels, and camera angles.  If there is anything that you can do to make the experience more natural, do it.  Some tips:  First, do not use artificial backgrounds.  It is very difficult to remain focused on the discussion when the speaker is disappearing into what looks like a wrinkle in the space-time continuum.  I know there are differences of opinion on this, but unless there is a good reason, try to avoid them.  Second, use a camera angle perspective that is as close as possible to an “in-person view.”  If you were talking to someone in a conference room, you wouldn’t be so close that all you could see was their face.  You would also, most likely, have a view of most of the torso and their hands and arms.  Try to achieve this.
One last suggestion, Rest. Most people, unless they are in the entertainment industry, do not like being on camera because it makes them feel uncomfortable and self-conscious.  How often do you suggest videotaping yourself for the fun of it?  It is also tiring to communicate with each other meaningfully through a screen.  Tip:  When not discussing the case with the mediator (and your client), turn off the screen and take a break, a real break.  Physically remove yourself from the screen and the room.  If you need to talk to your client, call them.  You will be back on a screen soon enough.
Research abounds on the topics touched on in this article.  For more information, start with the resources listed below:
Vavonese, L. B., Ling, E., Joy, R. & Kobor, S. “How Video Changes the Conversation:  Social Science Research on Communication Over Video and Implications for the Criminal Courtroom,” National Legal Aid & Defender Association, Center for Court Innovation (Sept 2020).
Murphy, Kate.  “Why Zoom Is Terrible:  There’s a Reason Video Apps Make You Feel Awkward and Unfulfilled,” New York Times, April 29, 2020, https://www.nytimes.com/2020/04/29/sunday-review/zoom-video-conference.html.

"Published in TortSource: Volume 24, Number 1, ©2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.”