By Dee Williams, Research Associate
The following is a summary of an article that Dee Williams prepared for Resolution Systems Institute.
The COVID-19 pandemic has led to online mediation becoming far more common in family cases than it was previously. This shift from in-person to video mediation has both benefits and potential pitfalls when it comes to participant safety, as discussed in a recent article by Erin R. Archerd.
In her Winter 2022 Stetson Law Review article, “Online Mediation and the Opportunity to Rethink Safety in Mediation,” Archerd describes some of the security benefits and challenges of mediating online, recommends steps mediators can take to enhance party security in online mediation, and calls for a more expansive conception of safety for mediations in general.
Some observers argue that online mediation can be safer than mediating in person because of the physical distance between the parties. Archerd acknowledges this benefit, but also sees a downside. She notes that when mediating in person, a mediator can personally ensure that the room has safe exit routes for all parties in case of a confrontation and that the mediation is not observed or interrupted by an unauthorized party. Such assurances are more difficult online. Additionally, Archerd states that interacting via camera also entails the loss of some of the nonverbal cues that mediators might normally use to assess parties’ senses of safety. To make up for this, she suggests that — once screening for impediments has been completed and the mediator and parties decide to go forward with mediation — mediators hold private pre-mediation sessions with each party. During such a meeting, the mediator can go over the security of the parties’ mediation locations, make sure they will be in a safe and appropriately private environment during the mediation, and establish ways to communicate if the party is being watched or intimidated from off-screen. Mediators can do something similar on the day of mediation by holding a private session with each party prior to joint session to ask them to describe their space and ask whether they feel they can safely complete the mediation process.
Maintaining confidentiality in an online mediation also requires more work, since mediators are not able to monitor all aspects of the space in the same way. Archerd recommends that mediation agreements make it clear that unauthorized parties should not be present at the mediation. In addition, mediators should communicate with parties in advance about how to ensure privacy in their mediation locations. At the start of the mediation session, mediators should confirm with parties that they are not recording and that no unacknowledged parties are present. Another aspect of safety is the long-term well-being of participants: Mediators conducting mediations online need to be sure they are well connected to “wraparound services” such as domestic violence or special education resources.