Breaking Through the Fourth Wall: Mediating Cases in a Time of Social Distancing
/In the world of theater, the “fourth wall” is a convention describing the invisible wall separating actors from the audience. While imaginary, it keeps an important distance between what is happening on stage and those watching a play. Occasionally, playwrights will deliberately break through that barrier, allowing actors and audience to venture into and connect in the same space and time.
The world of mediation is now facing a fourth wall. The day of face-to-face mediations in law offices has passed for the foreseeable future. In the meantime, online mediations via Zoom – almost unheard of a few months ago – have become the norm.
Online mediation, and specifically the experience of communicating through a computer screen, creates a fourth wall between mediators and participants, and even between attorneys and their clients. We have new challenges going to the heart of the mediation process, impacting the way we communicate and the way we resolve cases. If we are going to mediate cases effectively, we need to break through this wall. Some of the solutions are very practical and technology-focused; others go to how we conduct ourselves online during the mediation process.
Get a Better Internet Connection
The single-biggest practical impediment to effective online mediation is poor internet connections. One participant with a poor or overtaxed WiFi signal can freeze frames, warble speech and detract from the mediation. It can be a bit embarrassing if counsel with a poor connection can’t communicate or drops off the call.
If your signal is problematic, bump up your bandwidth (if possible) with your internet provider. Also use hard-wired ethernet connections instead of WiFi if available. If you must use WiFi be sure you are located close to your router.
Avoid competition for bandwidth when a mediation is scheduled by shutting off any unnecessary devices that are using the WiFi signal. Ask others to refrain from streaming games, movies and similar activities that drain bandwidth. If you anticipate problems mediating from home, consider relocating to a place where you have access to a better connection. Don’t wait for the start of the mediation to figure this all out.
Use the Right Equipment
While it is possible to connect to a mediation via cellphone, the screen size and available settings make the process less engaging and less communicative. Counsel and clients should have computer or tablet set-ups that will allow them to see all the mediation participants (using Gallery View) and talk and hear clearly. Some older laptops have deplorable microphone quality which will undercut communications with everyone in the mediation. Test your sound ahead of time with someone who will give you honest feedback. You may wish to purchase a quality plug-in microphone, which will substantially enhance how you sound online.
Improve Your Screen Appearance
To communicate well in an online mediation, you need to be seen.
Front-lighting is good; backlighting is bad. Close curtains or blinds for any windows behind you or to the side. Add soft lighting in front, or to the side of your monitor.
Consider your distance from the screen – not so close that you are a talking head, nor so distant that you appear removed from the process. A good webcam will allow you to adjust your focus.
Think about where your webcam is located. If using a laptop, consider elevating it to eye-level with those old lawbooks you could never find reason to throw out.
Make eye contact with the camera. We tend to look at participants on the screen when we are talking but we lose eye contact and an important part of communication in doing this. Consider a “Look Here” arrow for your webcam to remind yourself where to look. Get some honest feedback from a family member, friend, or colleague on how you are really appearing on screen and what might be improved.
Conduct a Trial Run
Mediators who work with Zoom daily know the importance of sorting out technical issues in advance. If counsel or clients have not worked with Zoom previously, ask your mediator for a chance to connect a day or two before the mediation to make sure the technology works for everyone. Even if you are familiar with Zoom, ask the mediator if you and your client can sign in early the day of the mediation, to make sure everything is working properly.
Step Up Personal Engagement
One important part of doing mediations in-person was social engagement – the talk between attorneys and clients in a conference room together and the visits with the mediator. This process of engagement and relationship building often does not involve discussions about the case at hand. Zoom, with its options for muting sound and turning off video, provides temptations for attorneys and clients to shut each other out except when the mediator is visiting. Don’t lose out on this important opportunity to engage with your clients.
Step Up your Mediation Presentations
Simply talking about your case through a computer is not always that engaging or effective. Zoom has a “Share Screen” feature that allows you to show participants photos, documents, diagrams, and even PowerPoint presentations. It is also incredibly easy to use.
If the story you want to tell is stronger with a diagram, document, or photo, you can queue that up ahead of time on your computer, hit the “Share Screen” button and choose to show it as you are talking. If you don’t know how this works, ask your mediator for a walk-through ahead of time (and make sure your mediator enables the “Share Screen” option for participants).
Use “Gallery View”
Zoom provides a choice between “Speaker View,” where you only see the face of the person who is speaking, and “Gallery View,” where you see the faces of all participants. In the context of a mediation, Gallery View usually will provide a more engaged experience. Make sure your client understands how to toggle between the two.
Encourage your Client to Talk
Some attorneys want clients to talk in joint session. Others treat this like a third rail, to avoid at all costs. Unless there is a compelling reason not to, I strongly encourage counsel to allow clients to have a chance to speak, even briefly. This increases client engagement in the online mediation, and it also gives the other counsel and participants a chance to get to know your client. The old days of personal introductions and handshakes before a mediation are gone, but we can still make this a more personal experience.
Practice and Get Feedback
If the prospect of mediating a case via Zoom is secretly terrifying, the best solution is to dive in. Download a free copy of Zoom on your computer. Do some practice sessions with colleagues, friends or family members. Find a mentor who is already mediating cases with Zoom and have them connect with you. Ask your mediator to do a quick practice session with you and your client. There is a learning curve here, but it is not too difficult. Ask for feedback on your sound, your lighting, and your screen appearance. Solicit suggestions on how to improve.
Conclusion
The pandemic has brought vast changes to the legal profession, including the way we mediate cases. Online mediation is not perfect, but those of us who do this regularly are happily surprised at how well it can work. With some forethought and attention to both the technology and how we conduct ourselves, we can break through the fourth wall and make online mediation an effective and engaged way to resolve cases.
Originally published in Maine Lawyers Review, Volume 28, Number 12 (June 18, 2020)
