As a mediator I am always asked why mediation
cannot be conducted via email.
I understand there are some positives to conducting
mediation via email, such as
- · easier
scheduling;
- ·
parties
from other states, or even countries, can participate without travel or time
zone constraints;
- ·
parties
can take time to draft an appropriate and more reasoned response; and
- · parties can easily find information from prior “conversations.”
From a
personal prospective and my professional experience in mediations, mediating
via email is problematic.
Of course,
I use email for communicating to clients at the same time in terms of
scheduling, the initial forms, and letters, and sending drafts of agreements.
To actually have substantive discussions though, mediation via email has not proven productive.
WHY….
A lack of nuance and intent.
Reading words on a screen without the context of the tone of voice or facial
expression can be very off-putting.
Some
phrases can seem harsh and can convey a dismissive or angry tone that the
person did not intend.
We are
all guilty of reading a text or email in the frame of mind we are in, rather
than in the frame on mind the sender is sending it in.
On the other hand, a person might be more prone to email something provocative that they would never say in person.
Even if the
mediator is willing to try to intervene and help the discussion, by the time
the mediator enters the conversation, the email chain could have gone on for
hours — and without any attempt at a mutual understanding, the damage that
could derail the mediation has already been done.
Partial or non-responses are given
In an email, it’s easy to respond only to those comments/requests you want to and ignore what you do not want to answer. I have read email chains where the parties seem to be having completely different discussions.
An email can begin with a party raising three points but the response only references point 2. The reply then ignores the response to point 2 and brings up point 4, and so on and so on...
The responses are not in real-time.
While
there is a benefit to being able to ponder a statement and then craft a
response, delay adds to the frustration of the other party.
This can make a difficult issue even more difficult to resolve, especially if follow-up emails are sent demanding a response
I also
believe that in any form of mediation, an immediate reaction from the heart can
be quite powerful and may not be substantially conveyed in an email that has
been reviewed and edited for perfection.
In the long run, it costs you more in fees.
It takes billable time for your mediator to go through the email chains and try to piece together what, if anything, has been resolved. Invariably, there will be a point that is missed or a response that is not clear when the mediator summarises the numerous emails.
That can then start the whole process over again.
If there are issues that come up in between meetings, I am more in favour of scheduling a phone call. Then, when necessary, I can intervene and be sure that everyone understands one another and the agreements that are being made.
Acknowledgement Clare Piro Attorney and Mediator
