Law Society Survey Results of Mediation Experiences During COVID-19
More than 77% of lawyers prefer to have mediations conducted in-person and less than 2% would have mediations conducted in a mixed-mode fashion, i.e. a mix of attendees joining in-person and via video-conference.
This was one of the key findings of a survey conducted by the Law Society of Singapore from 15 to 31 July 2020. Designed to provide practitioners with insights into international mediation experiences since the COVID-19 outbreak, the survey was conducted with the support of the Singapore International Mediation Institute (SIMI) and International Mediation Institute (IMI).
A total 113 responses were received to the survey. Forty-eight per cent (48%) identified themselves as lawyers and 36% as mediators. The remaining were corporate executives, in-house counsel, and other professionals. There were 22 jurisdictions represented in the survey with 60 per cent from Singapore. Europe (14%), Asia ex-Singapore (7%), and Oceania (7%) were the next largest groups.
Continued Preference for In-Person Mediations
The strong preference of respondents for in-person mediations should not be surprising.
One reason why mediation has grown in popularity is its effectiveness in fostering amicable resolutions. Mediators undergo extensive training to practise active listening, reframe the parties’ angry statements, and control their own body language so as to build rapport with the parties and restore trust in a broken relationship. A successful mediator is often one who is effective in de-escalating the tension and successful in fostering constructive open conversation.
In this light, it is understandable that practitioners’ greatest concerns over virtual mediation was whether mediators could be as effective in reading and managing the emotions of the parties. This outweighed their fears over the confidentiality of the session – a factor which received the third highest votes out of five factors.
Reflecting on the importance of physical presence in the Asian concept of “giving face”, Mr Abdul Salim, a mediator and advocate, shared, “In one of my mediations, ‘face’ was an important element for one of the parties who was an elderly Chinese businessman and the only way to appease him was for a face-to-face and heart-to-heart conversation with the other party. I cannot imagine how this could have been achieved over Zoom.”
Rise of Virtual Mediation
One of the more notable results of the survey, however, suggests that the use of video conferencing will continue to increase. Of the 31 mediators in the survey who had experienced virtual mediations, 21 indicated that they would prefer virtual mediations over in-person mediations if there was no change to the pandemic situation.
Reflecting on her own experience with virtual mediation, Ms Margaret Yeow, also a mediator and advocate, shared that she recently participated in a virtual mediation that was successfully resolved and she enjoyed the efficiency compared to in-person mediations.
According to the survey, the most popular video-conferencing platform for mediation was Zoom. More than 85% had used this with Skype a distant second at approximately 15%. In total, the participants had used more than 15 different video conferencing platforms including Microsoft Teams and Modron.
Surveyees indicated that a key motivator for the use of video conferencing included the fear of becoming infected with the COVID-19 virus during an in-person mediation. Another leading factor was the difficulties in communication because of the mandatory use of personal protection devices such as face masks.
The New Normal for Mediation
From the survey, it appears that in-person and video-conferencing mediations are likely to become normal for mediation. Many lawyers had shared that the matters they were handling had not been prioritised by the courts as essential. However, clients were keen to have the matter resolved.
Sixty-five per cent (65%) of respondents do not see themselves postponing mediation for existing matters beyond an additional 90 days from the time of the survey. Less than 1% expected their clients to be agreeable to a delay beyond 366 days. With social distancing restrictions likely to remain in place for longer than 90 days, it is understandable thus that most lawyers and mediators predicted that video-conferencing would increasingly become the accepted platform for mediation.
Mediators and counsel will do well to become familiar with the modalities of video conferencing for mediation, in addition to their existing competence with in-person mediations.
Do’s and Don’ts
To ensure that the mediation is fruitful rather than frustrating, mediators and counsel may wish to consider the following when preparing for a mediation during this period:
1. Decide if the mediation should be conducted in-person or via video- conference
Taking into account the strong disinterest towards mixed-mode mediations, mediators and counsel should generally choose between only a full in-person mediation or one where everyone attends via video. One central consideration would be whether all the parties can be present in-person. If a key representative cannot be present in-person, it may be advisable to have everyone attend via Zoom so there would be no impression of bias during the mediation.
2. Attend a free Zoom tutorial
With a strong general consensus that video-conferencing will be part of the new normal, and Zoom being the most popular platform for this, mediators and counsel should invest effort to acquire a basic level of competence in managing the platform.
The tutorials take about 30 minutes and equip the attentive participant with enough know-how to operate the Zoom set up. This includes setting up break-out rooms for the participants to have private sessions, using the white board, and screen sharing. For those who have a bit more time, it is also advisable to learn simple technical trouble-shooting. This will help much in avoiding unnecessary delay when there are technical failures.
3. Check and double check your set-up
Because of social distancing restrictions, the availability and capacity of meeting rooms for in-person mediations has been greatly reduced. The mediator should confirm that the layout of the rooms is ideal for the mediation and complies with the latest public health advisories. Parties should also be reminded to bring enough water of their own and to use a breathable face mask.
For video-conferencing, a simple technical inspection should be completed no less than an hour before the mediation if not the day before. This gives sufficient time for rectification of any errors detected.
4. Be mindful of the non-verbal communication
This applies both to video-conferencing and to in-person mediations.
One of the concerns for those who are new to video-conferencing is the fear that the signals from non-verbal cues would be much weaker and difficult to pick up. Some complain that it feels awkward to talk into the camera instead of looking at the parties on the screen. Having to speak into the camera to “maintain eye contact” also makes it hard to pay attention to the listeners’ reflex responses to the message.
While these concerns are valid and real, it is wrong to assume that there are less non-verbal signals or that one may be less able to properly access and accurately interpret those signals during a virtual mediation.
Those who are experienced with virtual mediation would know that a lot of non-verbal messages can be received and sent. For example, a self-represented party may choose to not use a virtual background and thereby subtly but deliberately reveal to the mediator and the other parties how desperate her home environment is. The mediator must be sensitive to the clues which the parties may sometimes be sharing sub-consciously.
For in-person mediations, there should be extra sensitivity to signs of fatigue and frustration due to the prolonged use of face masks. Where the matter is likely to require protracted negotiations, counsel may wish to prepare face shields or factor in more breaks.
5. Have a pre-mediation
In the Global Pound Conference Survey conducted in 2013, more than 300 international respondents unanimously concluded that efficiency was a central reason for the choice of mediation.
Efficiency is even more critical in the new normal.
Parties want to keep the time spent in physical gatherings to a minimum for personal safety. In some jurisdictions, the imposition of curfews makes it mandatory that in-person business meetings end within office hours. For video-conferencing, efficiency helps to prevent Zoom fatigue. This is especially where there is a difference in time zone between the attendees.
Good preparation through a pre-mediation with each party plays a major difference in ensuring the mediation progresses smoothly and rapidly. The pre-mediation can be used to do the required technical check-ins for video-conferencing. For in-person sessions, they can be used to confirm that the appropriately authorised individuals will be present.
The pre-mediations will also allow the mediator and counsel to create a preliminary common understanding on how to manage the dispute and where the minefields may lie. Having a clear and transparent virtual mediation protocol will offer everyone important assurances of confidentiality.
6. Develop a Plan B.
Because restricted in-person mediations and those happening via video-conferencing are both exposed to many external variables, it is important for contingency plans to be ready.
What does one do if one of the parties experiences a power failure and is unable to get into Zoom from a stable internet connection? What if one of the parties suddenly drops off the call and cannot be located? What if one of the intended attendees is suddenly served with a stay home notice and cannot join the in-person mediation?
These are just some of the very real situations that the mediator and counsel should review and agree on a common approach beforehand. This prevents misunderstandings and panic when the incidents occur and gives everyone greater confidence in the process.
With many businesses continuing to be disrupted by the pandemic, a growth in disputes is inevitable. Courts will likely be stretched. Demand for mediation will grow. The way it is offered will evolve and adapt. What is critical is ensuring that the quality of mediation services is not negatively impacted by the increased volume. This is a shared responsibility of mediators and counsel towards the community we serve.