Mediation Practice: Maintaining Standards in an Online World

Dr Mike Talbot Articles, Dr Mike Talbot

This is the first of a two-part piece looking at the impact of Coronavirus lockdown on the work of a professional mediation company. Here, UK Mediation CEO, Dr Mike Talbot, discuss mediation practice. Part two looks at professional standards in mediation training.

What just happened?
None of us saw this coming. A matter of weeks ago, we were running face-to-face mediation cases and mediation training courses all over the place: up and down the UK as well as overseas. A couple of our trainer-mediators had just landed back from St. Helena and were getting packed to go to Austria when lockdown hit!

We needed a good think about how we were going to operate the UK’s most active, quality-driven, and diverse mediation company.

Going online as mediators
The obvious choice for mediation cases has been to go online. So, we are now conducting large volumes of mediations for workplace, neighbourhood, commercial, family, and complaints mediations over Zoom, Microsoft Teams, or Skype. International referrals have shot up, and people who would never have contemplated attending a face-to-face mediation with their adversary have now taken the plunge because of the relative safety of sitting at a laptop, ready to close the lid if the going gets tough!

Is it as good as doing it face-to-face? Not really. Some of the drier commercial disputes that boil down to a final agreement over an amount of money, goods, or services that must be handed over are pretty straightforward even when done face-to-face and are no less so when carried out online. Incidentally, I notice that a lot of lawyer-mediators on Linkedin appear to be relishing the online forum, in which they don’t have to leave their offices (or homes) to conduct what in any case verges on evaluative settlement conferencing. ‘Why haven’t we always done it this way?’, I hear.

But, for me, the ‘real’ mediation caseload – dealing in all kinds of settings with relationship issues such as betrayals of trust, allegations of bullying and harassment, communication breakdown, resentment, anger, and vengeance – is far better carried out face-to-face, and I want to explain why.

What we can and can’t do as well online
True – in an online mediation, we can see each of the parties’ verbal and non-expressions to a large extent; we can, peering down our webcams, get some sense of how they are feeling and what they are thinking. We can even express empathy, use active listening skills, re-frame, and future-focus, etc.

But what is far less available when working online, to both the practitioner and to the parties, is an acute sense of the ‘between’: the interpersonal dynamic, the relationship between the two (or more) people, the quality of their interaction, the degree of psychological contact that exists between them, the strength of their interpersonal bridge.

My attention to, and interest in, the ‘between’ comes from working as a gestalt psychotherapist and especially from reading Martin Buber’s work in the area*. In Buber’s way of thinking, the ‘between’ does not belong to either one of the parties in an interaction, but as the name implies it only arises as an artefact of their relationship and interaction. And moreover, I believe, their interaction and relationship are further affected by the mediator’s ‘Presence’: his or her genuine, congruent, empathic, and impartial relating to the parties. From Buber’s ideas come a lot of contemporary notions about dialogue-building, as relevant to mediation as to psychotherapy, which is for me is what interpersonal mediation is essentially all about.

And how do we know if we are building dialogue and increasing (even to a small degree) the quality of psychological contact between two people? Well, there are some more mundane aspects to this, such as whether the people begin to express any understanding or empathy for one another, whether they begin to turn-take better, whether they move away from blaming and accusing each other and start to acknowledge a shared responsibility for making the situation better, or even whether they start to demonstrate that they are listening to what the other one has to say. And it is fair to say that, with close attention, we should be able to spot these things even when working online.

But, as a psychotherapist-turned-mediator, there is so much more involved in building dialogue and working well with Buber’s notion of the ‘between’, and there is a wealth of information that can get missed when we and the two disputing parties are not in the same physical space: the furtive glance that indicates surprise, the flared nostrils that suggest ‘I’ve heard this before and it’s still not true’, the brief look-away that can say, ‘And I’ve heard this before and it still IS true’; the slight, sometimes sub-vocal ‘tut’, the ‘huh’ that the microphone fails to pick up because the other party is ranting at volume, the briefly-raised eyebrow that can say so much and yet get missed.

And not only are these behaviours and micro-signals flying around all the time between the disputing parties, but they also come in the direction of the mediator. How the fully-present practitioner responds to them also affects what happens between the mediation participants.

The limits of online mediation
For me, the online setting brings no particular detriment to a civil ‘mediation’ that is all about arriving at a monetary figure which means that a court case is avoided: conducted in an atmosphere fairly devoid of emotion, centred on shuttle meetings in separate ‘break out’ rooms, and often urged along with some whispered legal opinion from the practitioner. My guess is that some of the many civil mediators who work in this way will keep a proportion of their cases online even after all this is over.

But, for me, true interpersonal mediation: whether about commercial, workplace, business, neighbourhood or family matters, is poorer for being conducted at the end of a webcam. Where the objective is to repair a relationship, rebuild dialogue, re-establish trust, or restore communication, we need to be fully present and in amongst the participants. Where we expect to enhance the quality of psychological contact between the parties, we need to attend to the ebb and flow of the emerging verbal and non-verbal dialogue, paying close attention to the ‘between’, and ultimately being as fully present as they themselves will turn out to be once their relationship is restored.

The future, for now
Right now, we at UK Mediation are enjoying the volume and diversity of referrals that we are getting for online mediation. The commercial cases that, in many instances, do not suffer too much for being carried out online, the family relationship cases that probably would not have made it into mediation had the only option been the more exposing and scary setting of a face-to-face meeting, and the many, many workplace cases that are coming through now: partly because people are working from home, getting very familiar with gazing into a webcam, and feel that now would be a good time to address some unfinished interpersonal business.

Online mediation works and is probably going to gain in popularity even after lockdown is lifted. But, to my mind, we shouldn’t get too used to it. While it has become a lot of people’s initial entry into the mediation world, there are a lot of relationship-centred cases that can be resolved online to a degree, but which really benefit from the more intimate, full-on, and direct intervention that can only be achieved by the mediator and the participants all getting together in a (real) room.

*Buber, M. (1947,2002) Between Man and Man. London: Routledge