Yousuf Karsh (1908-2002)

Whether because of travel expense or the difficulty of juggling multiple business and personal obligations, many clients attend mediation telephonically.  How many times, however, has a lawyer or mediator tried to get a mediation participant on the speakerphone, worked through the labyrinthine phone tree, only to land in the participant’s voice mail?  In this era of the ubiquitous cell phone, telephonic attendance has become even easier, at least in theory.  In practice, however, those present at the mediation often endure dropped calls, “dead spots”, garbled language, and yet more voice mailboxes.
Even when all the technology works perfectly, a mediation involving telephonic participants carries with it a significant disadvantage.    At the risk of stating the obvious, a successful mediation requires successful communication.  A tremendous amount of human communication, however, is non-verbal.  Facial expressions, eye contact, posture, and body language often say as much, if not more, than the words the speaker uses.  A telephone can capture a voice, but it can do little more.  It can capture a silence, but it cannot help us interpret it.  And make no mistake – the person participating by phone is at an equal disadvantage, because he or she is deprived of the ability to receive and interpret non-verbal communication as well.
Perhaps there is a solution.
Recently, I mediated a case in which one of the parties appeared via Skype™.  For those of you unfamiliar with Skype™, it is software that allows people to communicate over the Internet with the use of a webcam and microphone.  Communication is in “real-time”, and each party can see and hear the other.  During the joint session, our long-distance party was able to watch a PowerPoint presentation by opposing counsel, could see everyone around the conference table, and meaningfully participate in the session.  Everyone became more comfortable speaking on a first-name basis.   During caucus, counsel and I could actually converse with the client, rather than simply talk at one another.  We could see the client’s facial expressions, make and receive eye contact, and compare the client’s body language with verbal language as we all subconsciously do.
Was the technology flawless?  No, but it was as good if not better than the telephone, and any technical hiccups were far outweighed by its advantages.  As you might suspect, the case settled at mediation that day.  Did it settle because the distant client could appear by Skype™?  There’s no way to know for sure, but I do know that it helped, and that I’m eager to try it again.

Michael S. Orfinger
Upchurch Watson White & Max Mediation Group
August, 2011

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