Etiquette & Civility in Online Mediations
In a recent Notice to the Profession, the Ontario Superior Court of Justice called upon the cooperation of counsel and their clients to “engage in every effort to resolve matters” including participation in online, or virtual, mediations when possible. Counsel were also reminded to “observe appropriate etiquette” and practice “civility” during all forms of remote proceedings.
Nowhere is civility more critical to the outcome of a proceeding than mediation, as success at depends entirely on adversaries "agreeing". Civility does not prevent a party from taking tough positions on the issues but it does help draw people towards consensus. Incivility has exactly the opposite effect. Observing proper etiquette aids in maintaining civility.
With the rise of aggressive and disrespectful behaviors on many online social media platforms generally, it makes sense to make an extra effort to observe proper etiquette and practice civility in remote proceedings such as online mediations, to try to prevent the “bad behavior” rampant elsewhere online from migrating into the virtual mediation process.
Here are some tips on “internet etiquette” to help you communicate your positions effectively, while remaining professional:
In any virtual setting, always speak slowly and clearly, to ensure that you are accurately heard. The internet connections of some participants may not be optimal, and you don’t want to interrupt the “flow” of your comments, or the clarity of their reception, by having to repeat yourself.
Dress professionally, remember to look at your camera and be mindful of your facial expressions and body language. The absence of “good demeanor” is all too apparent in a virtual setting, and sends a bad message to the other participants about the level of your commitment to the process. Even though you may be alone in a remote location, never forget you are “on camera” for the other participants.
When not speaking, it is good etiquette to mute your microphone to limit extraneous sounds from distracting other participants. Microphones can be very sensitive, to the point that even the sound of typing on your keyboard or rustling of paper on your desk can inadvertently be heard by others. It also prevents irritating microphone feedback loops or “echo” effects. And, it reduces the amount of data being transferred, improving everyone’s connection.
Try to avoid moving out of camera range during any main or group session in the mediation. Just as it would be in a face to face mediation if you abruptly got up and left the room, it can be very distracting to the other participants, not to mention also appearing disrespectful. However, if you must, it is a good idea to politely announce that you have to do so, and turn off your video while you are away.
You should test your virtual “setup” before employing it for a professional event. Have a video call with a friend or family member, to assess whether you can be clearly seen and heard easily. Things to consider when evaluating your “setup” are: ambient noise, lighting, microphone quality, camera quality, camera placement, background and internet connectivity. Changing from a wireless to “wired” connection, to improve connectivity, is often one of the most valuable upgrades one can make.
In addition, here is some “classic” advice to foster “civility” and deal with “bad behavior” during any type of mediation:
Prepare mediation briefs and deliver opening statements which address the issues dispassionately. Maligning the other side’s intentions, with words like “frivolous,” “specious,” or “baseless”, almost never change an adversary’s mind. Rather, they prompt them to reply in kind, and the opening exchange of positions devolves into both sides focusing on the slights and affronts of the other, rather than the merits of the dispute.
For the same reasons, avoid interrupting, even if confronted with intemperate remarks by others, and don't take the "bait" by reacting "in kind" to such remarks. Rather, always respond “professionally”, and attempt to redirect the discussion back to the issues in dispute, seeking "reasoned" explanations for the positions being taken by other parties.
Finally, don’t be reluctant to employ your mediator to assist in fostering greater civility and trying to move the negotiations away from "positional" to "interest-based" bargaining. That’s what you are paying them for!