14 May Virtual Mediation – 8 Weeks on
Virtual Mediation – 8 Weeks on!
How are we coping?
We are now on week 8 of lock down and for me it has flown by and it now feels like the new norm. In week 1 the thought of carrying out mediations virtually filled me with dread. I had used Zoom with a couple of clients in the past but never attempted a joint mediation session virtually and only conducted assessment meetings online.
Issues I have faced as a mediator in lockdown.
This raised many questions, for instance how can a mediation session take place talking about child arrangements when the child is present in the home during lock down and the possibility of them over hearing the conflict? The other issue I have encountered in face to face mediations is people attempting to record the session by bringing in their laptop of mobile phone. Recording a session is strictly prohibited and in any event discussions in mediation are ‘without prejudice’ and the contents of the recordings can not be used in any way against the other party. That being said, a lot of conflict arises when other friends and family try to force their opinion and it is important that discussions between parties are directly between them. I was fearful that if a joint session took place at a person’s home, other people could be listening, or it would be easier to record the discussions.
I was also fearful of the technology. Is it private? Will the signal be good enough to ensure that productive conversations can take place? Will everyone be able to access it at home? From conducting research, Zoom seemed the best platform and you can even put people in waiting areas …. but how?
Many separated couples still reside together in the family home and I was concerned about the logistics of the joint session taking place and also any potential aftermath following the meeting. The inability for a person to speak freely knowing that their ex-partner is in the room next to them and what will happen after the call. The possibility of conversations continuing after the mediation session and the safeguarding of children who are also present in the house.
I am a member of Resolution and the Family Mediators Association who have provided guidance and support to mediators to help them adjust to this new way of working. As a mediator I assess each case individually following the assessment meeting with both parties. Mediators also have a Professional Practice Consultant to talk things over if they have concerns about safeguarding.
Although all the issues above are still in the forefront of my mind when deciding if a mediation is suitable after an assessment meeting, I have embraced the new way of working and quickly adjusted.
How to overcome the issues!
At Consilia Mediation we decided to offer a 30 minute free session to our existing mediation clients so that they could evaluate whether virtual mediation is an option to continue. Rightly so most clients were sceptical about this and so was I. For my clients who decided to take up the opportunity of virtual mediation, I have been able to continue with the mediation sessions as before and they have worked really well.
To ensure that parties are not recording the session, I discuss this in the initial assessment meeting and highlight that if they are found to have recorded the session or someone else is present then the trust and confidence in the process is lost and I will deem mediation as unsuitable. I have also adapted our Agreement to mediate to incorporate conducting mediations virtually.
I also ask parties to show me around the room on the video call to ensure that no one else is present and discuss this again in the session with them both. I have done many mediations session virtually and all parties have signed the agreement and I have not had any issues with people being unwilling to agree the terms.
One issue that has been hard to overcome is having the children present in the house. I ensure that I ask the client in their initial assessment meeting, who is present in their household? I ask where the child or children will be if a joint session takes place and what provisions are in place to safeguard them. I have considered if I was the client how would I overcome this with my own children present in the house. I have rooms in my house that are private if someone else was able to sit with the children to ensure they are not in ear shot. This is not possible when you live on your own with the children. I have two small children myself and know only too well how distracting they can be if you are trying to talk and it is important to have your full attention in the mediation, even if they are too young to take note of what you are saying. It is easier to occupy older children but if they overhear the tone and content of the conversation it could be damaging to them. To overcome this I have offered evening mediation sessions at about 7.30pm when younger children are asleep in bed. It also means that mine are asleep too as I am in lockdown with a 3 and 4 year old in tow. Rest assured that my husband is on hand to ensure that the children do not interrupt whilst I am conducting joint mediation sessions.
Another great idea that my client came up with, who has children in the house over 16 and still resides with her husband, was to conduct the mediation session in separate cars on the driveway and this has worked well. As the lockdown restrictions ease it may become easier for someone to watch the children whilst mediation takes place. I think we are a long way off been able to conduct mediations in the traditional manner of face to face.
Everyone seems to be embracing technology and I have not had a session where either party is unable to conduct the session via a video link. I prefer to use Zoom due to the screen share facility and waiting rooms but we can also use skype, WhatsApp and messenger.
Could virtual mediation be the new norm?
I think that virtual mediation is going to be the norm going forward. For people suffering domestic violence or where they live far apart, I would usually deem mediation as unsuitable. By using virtual mediation, it takes away the issue of distance and now I will not use this as an obstacle for mediation to not take place in the first instance. I have adapted my Mediation Information Assessment Meetings to discuss all options available.
Domestic violence is still a concern but for people who have not had any face to face contact with their ex-partner, to then suddenly be thrown in a room with them and to discuss children or financial matters is extremal daunting. Many clients have said they prefer it via video link as they feel able to speak more freely and not have the awkwardness of sat across the table. I have also found that to prevent one party from dominating the conversations, the mute button is fantastic. If this is necessary, I explain that I will give each person the opportunity to speak and I will unmute you when it is your turn to speak. I wish this facility was available in real life as it ensures each person listens to the other person which is something that doesn’t usually happen in their relationship. I am also able to speak to them in separate rooms if the prospect of seeing their partner even virtually is difficult.
The screen share facility on Zoom has brought the way I conduct my mediation sessions into the 21st Century and I cannot see me going back to the use of flip charts and endless notes on paper.
In face to face mediations I have always been hesitant to use a laptop as I felt it acted like a barrier between myself and the two clients. In virtual sessions I can type my notes with my head set on and in turn this has saved me time in writing the record session after and improves accuracy. I always use a flip chart in face to face sessions and then have to store the papers after. In video link mediations I share my screen and type up the agenda with the parties present. It is also better in our firm’s attempt to be paperless and for the environment.
In the joint session I usually document the financial disclosure on a flip chart and I have now created an excel spreadsheet template that I use and share the screen and update this together with the parties. It also calculates everything automatically so less room for error and less time consuming than using a calculator.
I deal with a lot of high net worth financial matters and trying to agree a date for the joint session is often difficult with 3 peoples busy diaries. I have found this a much easier process as people are able to fit in a 2 hour appointment when there is no travel or worry about parking etc.
Online Mediation in the future
I already have plans to incorporate my new way of working into normal life when back in the office. I have embraced the new way of working and as a firm we will continue to offer virtual mediation and actively encourage it. We will actively encourage assessment meetings and joint sessions via video link and not as a last resort. We will embrace new technology and invest into interactive white boards – so no more flip charts!
This time in lockdown has allowed me to reflect on how I conduct mediations and I believe that Consilia Mediation will come out of lock down embracing technology and offering a better quality streamlined service across the UK.
Sarah Manning- Associate Solicitor Mediator @ Consilia Legal