2020 has taught us many lessons, including that things quickly change, and so we should expect the unexpected.
In my May 21 blog post entitled #Breaking: Virtual Mediation is Now “Mandatory for Civil Cases in Ontario”, after making the argument that virtual mediation of civil and estates proceedings is “virtually” (if not literally) mandatory throughout post-COVID Ontario, I asked the following question:
“OK, but what if I still want to wait for an in-person mediation?”
Conveniently, I answered my own question:
Considering everything … I advise against it.
While I, too, look forward to conducting in-person mediations again when it is safe and practical to do so, the spectre of COVID-19 will, unfortunately, be with us for the foreseeable future. I question the effectiveness and attraction of in-person mediations held in 2020 when we will need to be six feet away from one another, many of us will be wearing masks, certain people will be reluctant to attend in person for various reasons, and those who attend have to worry about potentially exposing themselves (and others) to coronavirus.
Meanwhile, there is a viable online alternative where reading facial expressions and body language are not issues, you can have private conversations, and no one needs to worry about personal health and safety.
We were in Stage 1 at the time, and I was still naively confident about my powers of prediction – despite regularly challenging the prediction powers of others at mediation.
Less than three months later, after Ontario quickly passed through Stage 2 and into Stage 3, I found myself conducting an in-person mediation at the request of counsel. All (not most) of the participants wore masks, demonstrating how public policy and public acceptance of masks had shifted over the months. And while sushi and sandwiches were not served, there was plenty of sanitizer and space.
I had suddenly transformed into the Masked Mediator. While neither super nor a hero, the Masked Mediator rolls with the times, and the metaphorical punches.
Don’t get me wrong: I was a quick adopter and proponent of virtual mediation (via Zoom) as soon as we locked down. I will continue to extol the virtues of virtual mediation for the rest of my career as a mediator and settlement counsel. I recommend it to anyone who hires me. Despite this, not everyone can participate in virtual mediations, even if they want to, for many reasons, including a lack of access to - or competence with - the required technology, disability, and a lack of privacy at home.
Following the mediation, I Tweeted the following to capture some of my reflections:
First in-person #mediation since #beforecorona today.
No hands shaking.
No buffet eaten.
No close talking.
No frowns or smiles seen.
No swag given away…until another day.
Beyond my lame attempt at poetry is the fact that, just like the best mediated settlements, this mediation format was a compromise that was better than the alternative: an indefinite delay due to the pandemic as a fully virtual mediation was not an option. I sat with one side’s participants in a large room across and along boardroom tables, at least six feet away. I would not have been much closer during (old) normal times. One-on-one meetings with counsel were still possible, just with the same distancing and masks. Everyone kept their voices up (without shouting), so we had no difficulty hearing one another.
What non-verbal information I could not receive from the lack of facial expressions, I could still receive from eyes, voices, and other cues. The brain adapts. And even though virtual mediation allows us to be unmasked, most of us still find it difficult or impossible to maintain proper eye contact using webcams.
This mediation also had the best of both worlds because those persons from the opposing side participated via videoconference in another boardroom. I walked between rooms and enjoyed getting some exercise since switching between virtual breakout rooms on Zoom does not require me to get out of my chair.
So, in the end, I complied with my own condition for conducting an in-person mediation: “When it is safe and practical to do so,” just earlier and easier than predicted. And while it might have been even safer (and more fun) to have mediated outdoors on a patio, it was not practical. This does not mean that what is safe and practical won’t change as the seasons change. I wrote this in mid-August, but by the time you read it, my words may seem irrelevant or quaint – much like case law from 2019.
So, while masked mediators might occasionally need to go into hiding as we move from one new normal to another, I’m guessing (not predicting) that they won’t disappear – at least until there is an effective vaccine.
About the author
Mitchell Rose is chair of the OBA’s Alternative Dispute Resolution Section. He will co-chair and speak (unmasked) at the September 29, 2020 OBA webcast program Virtual Mediation Bootcamp and Mentorship Roundtable: Your Essential Guide to Excelling at Mediation. He can be reached at firstname.lastname@example.org.