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Guest Interview on Virtual Mediation

Interview by Larry Ray of Paul Thaler.

Thaler is a renown attorney mediator and arbitrator. Partner at Cohen Seglias Pallas Greenhall & Furman PC. He represents scientists and assists institutions in matters concerning research misconduct. He is a Neutral on the Senatus ADR Panel.

Larry Ray (LR): I know you are not a technology expert, but what equipment information do you give the parties before the virtual mediation (VM). For example, should their computers be hard wired?

Paul Thaler (PT): You are correct! I am no expert. I must admit that I have had no issues with regard to technology. I rely on each participant’s set-up. They are given the Zoom link. I can manage the “rooms” they are in during the course of the mediation.

LR: What virtual etiquette or guideline or ground rules do you use in a virtual mediation (VM)?

PT: It can get difficult if people interrupt each other in a group session, especially if the technology has trouble keeping up. So I have to stress the importance of respecting each person’s opportunity to be heard.

LR: What advice do you have for the screen background?

PT: Nothing too distracting! But I have come to appreciate the different backgrounds – some of which can be beautiful or serene. They add to the level of peaceful dialogue!

LR: There have been some “dress” accidents during virtual sessions. What do you wear and what do you advise the parties to wear?

PT: I have heard of them but not experienced them first hand. I think many who participate by Zoom, or equivalent technology, adopt the TV news anchor approach of business up top, casual below. I’ve only heard of a few mishaps, but these days, we need mishaps to lighten the mood!

LR: What pre-mediation steps do you advise in VM?

PT: It can be useful to have a pre-mediation session whereby we meet each other, discuss the technology and ground rules and any issues that might arise.

LR: Are the mediation stages basically the same during VM?

PT: I try to keep things as close to “normal” as possible. That adds comfort and trust in the session. We have private caucuses and group sessions. I tend to start off with the larger group and then move, fairly quickly, to private caucuses to allow me to do my work of bridging gaps in settlement positions as efficiently as possible. Then, at the end, we get back together as a group.

LR: How do you use “the breakout sessions” function during VM?

PT: Carefully, but they must be used to be successful in mediation. These days, with virtual “rooms,” we must be very careful about avoiding any mistakes that might compromise the integrity of the process.

LR: It is said that 90% of communication derives from nonverbal. How do you accommodate this in VM?

PT: It is definitely more challenging but we can still see the participants and work with the non-verbal cues they give. We can also break them out to a private session to ask questions perhaps more directly.

LR: Do you record and if so, what about confidentiality?

PT: No, I do not record a mediation. The process is meant to be an attempt to settle the matter and nothing is to be used in later proceedings if it is unsuccessful. That approach could be compromised if the session is recorded. Someone might try to use something discussed during mediation against another. The only thing that needs to be recorded in some fashion, in my opinion, is a settlement. But I usually leave that to the lawyers to craft and exchange. I am available to help, if desired.

LR: How long does a VM typically take?

PT: Really depends on the subject matter. I have had mediations go for just an hour or two with others going for weekly sessions over a period of months! Specifically with virtual mediations, they have been on the shorter side.

LR: How do you effectuate the agreement?

PT: As described above, I defer to counsel to draw it up and exchange ideas. However, if they want me to help, or to draft, I am willing to do so.

LR: Many folks long for “the back to normal.” I don’t. I want to move on to even better times including virtual doctor visits and virtual mediation options. What are your thoughts? . -

PT: Virtual mediation is still new and subject to growing pains in people’s use of technology, comfort levels, and so forth. I think mediation is best in person, but virtual mediation can be a nice option, especially for disputes in which parties are in different jurisdictions. Plus, you get to dress like a news anchor!

LR: Thank you. This is most informative in re VM.

More about Paul S. Thalel


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