Video mediation is here to stay, but does it fulfil a purpose for all mediations – corporate, commercial, civil, community, family and HR disputes?

”What you see and what you hear depends a great deal on…what sort of person you are.”

Mediation requires communication and an effective mediation requires effective communication.

The present imposed social restrictions have, for the time being, prevented face-to-face meetings; the question is, do video conferences facilitate effective mediations?

Most social experts agree that over 70 percent of all communication is nonverbal; eminent researcher Dr Albert Mebrabian concluded that the interpretation of a message is 7 percent verbal, 38 percent vocal and 55 percent visual – therefore 93 percent of communication is nonverbal.

The role of the Mediator is to facilitate communication between parties, so if 93 percent is nonverbal, the Mediator must be the one person who is alert during a video conference to signs, language and indicators which may be missed, dismissed or taken for granted by others.

Nonverbal communication is:

Vocal – speech flow, pitch and volume levels and silence;
Body language – posture, fidgeting, hand and head movements, eye contact, touch, facial expressions, personal appearance; and
Space and distance between people – setting the physical boundaries for the conversation.

Vocal indicators should remain noticeable for attentive listeners during video conferencing, however, a significant portion of body language signals are likely to be ‘invisible’ during a call. Changing the distance between speaker and listener is governed by technical limitations of the equipment and is more likely to cause irritation if too close to the camera, wondering around a room and inaudible sound speach. The inevitable result may be a minimum of 55 percent of communication is unused and reliance placed only 45 percent to transfer a message.

Interpersonal trust relies on human interaction and an important skill of a Mediator is to build rapport, trust, and create empathy with each party in a dispute in order to facilitate all parties reaching a settlement agreement. Without developing a connection, the Mediator becomes a middleman or post-box and apathy will result. Mediators instructed by familiar lawyers and attorneys may well have already built-up a rapport and trust and thus nonverbal communication will be of less importance, but their clients, the decision makers, are likely to be unknown and struggle with trust and empathising with people visible on the screen.

Inability to ‘read’ a client may lead to stilted conversation and a reluctance to speak when listeners reactions cannot be clearly seen, and unfamiliar body language indicators missed or misinterpreted. This may lead to the Mediator, having the rapport with the lawyers, isolating the client leaving them feeling remote, not seeing any benefits and possibly bringing to a premature end the meeting session.

Skilled video Mediators tune into nonverbal indicators and ensure the decision makers are fully engaged during the call. This will require a greater degree of preparation time before the mediation with as many members of the parties as practicable and for gaining confidence in the equipment and process. It is also possible at this stage to suggest only key people should be in attendance during the video conference calls to avoid disturbances and not contributing to the process.

Video mediation is here to stay but a cross benefit analysis has to be undertaken on a case by case basis between the video conference and face-to-face mediation. The benefits of video mediation are attractive: time and travel costs saved; lesser notice period and shorter meeting time. However, there are disadvantages: lack of physical commitment; too easy to end a session and the ability to quickly turn to other work when not engaged in conversation and the Mediator is not ‘present’.

Martyn Haines
May 2020