Will social mediation become a victim of Covid-19?
By Lionel Paraire, Galion Société d’Avocats, Paris
This question is now raised with acuteness, since, even after the release from lockdown, the Covid-19 outbreak limits our social interactions while encouraging the use of technology to keep in touch with each other and work remotely.
It must be admitted that, even before the sanitary crisis, the constraint of having to move could discourage the use of this means of dispute resolution, which is unfortunate, because conflict situations can gangrene organizations by causing anxiety, absenteeism and finally a decline in performance and productivity.
We could here state as a reminder that mediation invites the parties to discuss their issues in a constructive manner, with a third party’s assistance: the mediator. It notably facilitates the sharing of perceptions on the disagreements and enables to chase away any misunderstanding and to better understand how the conflict arose and what fed it. By offering some space to release emotions that have been held back for a long time, mediation sufficiently eases the pressure among the participants so that they can seek and find together the ways to put an end to their dispute.
During the lockdown, certain mediators have contemplated mediation though videoconference as an alternative to mediation with physical presence.
But is it possible to duly perform mediation tasks remotely using modern technology? Absolutely, provided however that mediation is adapted to these new tools at each step of the process.
Step 1: Setting the meetings （设定见面日程）
Mediation on a virtual platform has a clear advantage over physical meetings with respect to meeting organization. Indeed, no need to look for an available meeting room or to worry about meeting times: a virtual room is available for the participants whenever they wish and mediation can be organized very quickly. Sessions can be shorter but more frequent without disorganizing any schedules. The participants will then be able to join from their workplace or from home, with all the comfort they need. For the mediator, if the organization is also simpler, he or she will obviously have to master the tool he or she will choose and test it early enough so that it does not become a matter of concern.
Step 2: Welcoming the participants（欢迎参与者）
Welcoming the participants is important when beginning mediation because it creates a climate and forms the group. The proximity of the persons enables the mediator to finely perceive the emerging mood and to adapt the inclusion phase to this perception. Virtual presence may cause reception to feel colder. So here is an advantage for mediation with physical presence. However, to compensate for this, the mediator can always dedicate more time to the presentation of the participants allowing each of them, including the mediator, to introduce themselves, express their state of mind and get to know each other. And virtual mediation has yet a small advantage over face-to-face mediation, since the mediator can see himself or herself in a window on his or her screen. He or she can thus check if his or her face is welcoming and make any necessary adjustments…
Step 3: Prior validation of the framework for the discussions（调解前的讨论框架准备）
At the beginning of mediation, the mediator states the rules that everyone shall observe, ensures that they are understood and accepted: confidentiality of the discussions, possibility to take breaks and to have private conversations, conditions for each participant to address the meeting, mediator’s attitude, etc. At this stage, everyone is, in principle, attentive, whether in physical or virtual presence. Whatever the case, the rules of the game thus do not change. However, a virtual meeting requires some additions, notably regarding confidentiality by insisting on the strict prohibition to record the meeting and by making sure that no third party is concealed off camera. These points had better be specified in the mediation agreement.
Step 4 : Progress of the discussions（调解进行中）
During mediation, the mediator facilitates the participants’ speaking time and makes sure that everyone listens to everyone else. In virtual mediation, the fact that no one is face-to-face may ease speaking by overcoming resistance and avoid in parallel any purely physical rejection aspects caused by the vision of others, blocking or delaying the process towards an agreement. As regards face-to-face mediation, the participants are fully aware of the presence of the others. For the mediator, it is obviously easier to reframe the discussions when he or she is physically at the center of the debates: some of the natural moves used by mediators (like placing a hand on the table or standing up) cannot be made through the use of technology. To compensate for this, the mediator will have to speak more regularly to ask questions and check the participants’ degree of attention to the others. He or she may also use text messages to regain control over the debates.
Step 5: Conclusion of the meeting（会议应当有结论）
Before the end of the meeting, time is given to the participants to express themselves: how was the meeting like for them, what was positive or difficult, what are their expectations for the future? If mediation is not over, the parties shall arrange the next meeting. In this respect, virtual mediation does not change anything. The mediator shall be able to gather their feelings from the participants about this type of communication in order to make further improvements.
As a conclusion
If mediation through videoconference developed due to the movement restrictions related to the lockdown, this type of mediation exercise should continue to develop. Remote mediation has indeed several advantages. The absence of physical contact or of an imposed place can as such already help defuse the conflict. The process is also easier to organize: no travel expenses, no transport time, no place to choose. It could thus help make social mediation more accessible. If the use of videoconference requires a few adaptations, nothing cannot be overcome. Let us thus bet that face-to-face mediation and remote mediation will be able to smoothly coexist.