A recent survey ( NADN-2022-SurveyOfLitigators-ViewsOnODR[64656] )  conducted by the National Academy of Distinguished Neutrals found that prior to the pandemic and lock down in March 2020 only about 2% of litigation attorneys had ever attended a mediation or arbitration using a video conference platform.  But thanks to the pandemic, as of September 2022, about 75% of cases were using a video conference platform for conflict resolution.

Just as important, 75% of the respondents to the 2022 survey believed that the mediator would  be equally effective whether the mediation was in person or via video conference. And finally, the majority of respondents believed some if not all of their cases should be mediated online in the future.

Yet despite this wave of optimism for online dispute resolution, mediation by video conference does have some downsides. In a Harvard Pon blog post entitled “The Hidden Pitfalls of Video Negotiation” by Pon staff dated May 16, 2023, the author discusses a chapter in Noam Ebner’s book- The Negotiator’s Desk Reference (DRI Press 2017) pointing out these pitfalls.

The first is “limited visibility”. In an in-person mediation, we see the whole person- the whole body. But in a video mediation, all we see is the head and shoulders of a person or a “talking head”. We also do not have a 360-degree view of what is going on behind and beside the person (as we would in person). Thus, if the person is not looking directly at the screen but perhaps off to the side, we wonder if something or someone else has grabbed her attention. Further, due to the  state of the internet connection,  the screen of the person may be less than clear or worse, the person may simply choose to have her camera turned off! (Id. at 1-2.)

This brings up the “technical difficulties”. The parties may have trouble logging on or staying logged on. The connection  may be spotty or weak at best. There is nothing more frustrating than to be making a really good point when the connection becomes “unstable”, and you lose your audience. (Id. at 2.)

A further point which is well known is “privacy and security challenges”. As we all know, in the first few months of using video for everything, there were a lot of “zoom-bombing” or uninvited interlopers into one’s video sessions. While security has gotten much tighter in the ensuing years, it is still not foolproof. Further, as Professor Ebner points out, a real concern is that in any video conference,  one of the parties may be secretly recording it or having a third person listen in or even offering advice. (Id.)

And finally,  as Professor Ebner points out, in a video conference, we see not only the other person on the screen, but a screen shot of ourselves as well. Thus, any visual differences such as age, race, gender, culture  et cetera may be highlighted if not stereotyped. This  may cause our unconscious biases to affect our negotiations- to everyone’s detriment. (Id.)

Thus, while video conferencing has been a boon to everyday life, we should still be mindful that there are some negative aspects of negotiating by zoom.  In those rare circumstances,  it may just pay to negotiate in person.

… Just something to think about.

 

 

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