Why do people agree to mediate?

Simply because they need help in solving a disagreement or problem. After all, mediation is a form of dispute resolution. It’s about working cooperatively to reach mutually agreeable solutions.

But should mediation be limited to only disputes? I contend we consider a new form of the process I call “Preventive Mediation.”

Mediators are trained to help people establish objectives and to help them with problem solving. Mediators are also trained to maintain a climate conducive to working together by thinking creatively. Lastly, they are trained to help people develop general agreements into specific defined and workable ones.

These skills make cooperative dispute resolution a reality for millions of people dealing with conflicts. But those same skills can help people avoid conflicts in the first place.

Here are some examples:

1.) Assume a successful family business. While things are going well, that may be exactly the time to work with a mediator to consider the “what if’s” of succession before that becomes an issue that can threaten family relations.

2.) A couple in their 40s recognizes that in a few years their parents may face the challenges of aging. While all family members are healthy, that is exactly the time to consider the ”what if’s” of the issues the family may face when the parents experience medical challenges.

In other words, the “what if’s” are the precursors of disputes. Preventive Mediation brings those issues to the table when the parties are not stressed and emotionally involved in a conflict.

Some may question if Preventive Mediation is simply facilitation. A facilitator typically helps parties be more clear in their communication without providing the problem-solving process a mediator does.

Preventive Mediation deals with the “what if’s” before they become destructive conflicts.

Even though telephone and closed circuit media have been used by mediators for years, the traditional popular belief was that when disputing parties or their attorneys are physically together the likelihood for a settlement is greatly increased. But the last thing anyone wanted during the Covid-19 pandemic was to be in a small room with others for hours at a time.

Many mediators turned to what had long been referred to as ODR, or online dispute resolution, and after a short time of wide use and acceptance, ODR is now here to stay.

Actually, ODR today refers to a wide range of technological support ranging from online forms, dispute resolution software, and video platforms, such as Zoom or Microsoft Teams, whihc are sometimes used independently and at times together.

While the original motivation was Covid compliance, here are the continuing advantages of ODR:

•             People can participate from anywhere. Scheduling became easier as parties could participate while on trips, etc.

•             Safety is enhanced. In some mediations such as those physical or psychological safety is an issue, remote participation offered the opportunity to participate from locations unknown to the other party.

•             The pool of mediators is greatly enlarged. Mediators can conduct sessions from another state or country.

•             Time is less of an issue. If the parties and mediator are willing, the session can be conducted during the evening or weekends.

•             Physical space becomes less of an issue. Some locations are limited in space for separate meetings. It’s simple to set up virtual meeting rooms for attorneys to confer with their clients and for mediators to caucus with participants individually.

•             Flexibility. The virtual option allows for easy sharing of exhibits and documents.

•             Tech Perks. The technology is developing to allow screen captioning and interpretation.

Because mediators have become comfortable and skilled with ODR, it’s unlikely face-to-face mediation will return as the dominant mode.

There are some cautions, of course. Not all participants are comfortable with the technology, nor have adequate equipment. And finally, privacy is a concern. For example, the mediator might lose control over the physical environment around them, such as children coming in the room or unknown third parties listening in. The mediator also has no control of parties recording the mediation other than their promise not to do so.

Even Amazon’s Alexa and other virtual assistants could possibly record the mediation.

It remains to be seen all the ways in which the Covid crisis impacted the profession of mediation for the better, or not, in the years ahead.