Emotions are an unavoidable part of negotiation and mediation.

Emotions should not be ignored as they can adversely impact the process. Generally, during training, mediators are encouraged to accept a person’s right to be angry and allow them to vent their feelings, including taking short breaks. Further, mediators are encouraged to shift the focus of anger from individuals to the problem or issue at hand.

 Many things can result in anger during negotiations and mediations. Misrepresentations, excessive demands, time constraints, and any number of other triggers can elicit fury. And it’s important to remember that participants in a negotiation or a mediation can be faking their displeasure to elicit a response.

 Anger can clearly influence the negotiation process. Researchers have demonstrated that exasperated opponents convey their limits are very high and in response the other parties give the that party more concessions and make fewer demands of their own.

 Some believe displaying anger will result in gaining value from the other participant. In fact, if a negotiator’s anger is perceived as genuine that negotiator might indeed benefit. However, it’s a risk. Intentionally faking anger might be met with real ire from the other party. And if the other party does not believe the emotion is real, trust and cooperation could be lost.

 Another study involved more general positive and negative emotions. The expression of positive emotions is more likely to result in concessions from the other party and more likely to successfully reach an agreement. The expression of negative emotions results in more extreme demands. If a negotiator is considering intentionally displaying emotions, there appears to be little negative consequences and more beneficial outcomes for expressing positive ones.

It might be said “putting on a show of anger is risky, but nothing is lost by being friendly.”

The COVID pandemic forced mediators to replacee in-person sessions with virtual ones. Some were concerned that participants would not be able to adapt, but most mediators found not only acceptance, but praise for online mediation.

Small Claims Courts, in particular, have made the transition. For example, Los Angeles uses TurboCourt, an online dispute resolution platform built by Intresys, Inc. Litigants first register, then confidentiality share documents, propose resolution, and, if possible, reach an agreement. If the parties are unable to come to terms, they may request assistance from a mediator who will assist them in navigating the process.

China has similar programs. According to the Zheng province government website, parties register with their mobile phone, describe the dispute and upload materials. Mediators conduct an online video session and if the parties reach an understanding, the parties apply for judicial confirmation of their online agreement.

Private mediators are using WebEx, Microsoft Teams, GoToMeeting, Skype, and Blue Jeans, as well as Zoom, which currently appears to be the video platform of choice. If one or more parties are not familiar with either, the mediator may schedule a pre-mediation session to discuss the process and help the party become comfortable with the technology.

Virtual mediation requires few modifications: The mediator’s opening statement will have information similar to face-to-mediations except the mediator will review platform features—particularly the mute/unmute function. The mediator may ask all participants to affirm they are not recording the session and to affirm that no one else is in the room with them. The mediator will give directions for using breakout rooms. Finally, the mediator will be sure everyone has phone numbers to use if there are technical difficulties or otherwise need to contact the mediator privately.

The mediation process itself remains much the same:  Just as face-to-face, the mediator may conduct a caucus in private breakout rooms. If the parties reach an agreement, the mediator may facilitate exchanging drafts of the agreement via email for security reasons. If security is not an issue, one advantage of Zoom, for example, is how participants are able to see their agreements being displayed on their screen. Parties can make real time editing as they develop and review their agreement.

Mediators have been reporting participant satisfaction with the process because virtual sessions are engaging and helps focus their attention on the other party.  Some mediators, on the other hand, do not like the virtual option. Their primary objections are that, in their opinion, the commitment to travel and appear in person and the factor of sharing the same space are major motivating factors that are simply not present during online mediations. Other object that the mediator cannot control the party’s physical environment, that is, parties may be distracted by their own office or home environment. And, of course, there is always the possibility or some might say inevitability, of technical problems.

My early observations of virtual mediations lead me to question if mediators were tending to be more directive online. At least one study has found that mediators self-reported as being so.

 While some find virtual mediations new, we should recognize the stimulus for online dispute resolution was e-commerce. E-Bay’s pilot program to mediate disputes between buyers and sellers dates back to 1999 and by 2010 claimed to have handled over 60 million disputes with an 80% settlement rate.