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July 2020
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- Bob Black
MehaffyWeber PC.

Written By Managing Shareholder Bob Black

One of the consequences of the current pandemic is a change in how we practice law and deliver legal services. Mediation is an example. We have gone from in person mediations to Blue jeans and Zoom virtual mediations. After 4800+ mediations, I embraced change about a month ago.
In researching videoconference options, I chose Zoom, the professional version. It is available at a low cost per month. I chose Zoom after reviewing the issues raised regarding confidentiality and network security. My assessment was that security issues exist for all videoconferencing methods and that Zoom had the most usable process right now. There will be rapid development in this area and my choice may change.

I like Zoom a great deal but do have some observations about it after conducting 18 Zoom mediations. Let me address security and confidentiality concerns first. Then I will share my observations about mediations conducted by videoconference.

Security and Confidentiality
I have had no issues with the Zoom system. Once parties are in their own breakrooms, confidentiality concerns are basically nonexistent absent an error by me as the host. For example, if the host places someone into a breakroom that does not belong there, it could be a problem. If it does happen, however, the host should quickly realize it and the people in the breakroom can see on their screens that someone is present who should not be. Removing that person involves a simple click of the mouse. Again, it has not yet happened to me. We are careful to provide the link to the videoconference only to pre-identified participants. That way, we know who should be present. Last second call-ins pose a problem and I do not admit them until I have verified they belong with one of the parties.

The more serious confidentiality issue is the available Record process. Mediations (including virtual mediations) should not be recorded. Some recordings violate various state laws anyway. The Record button is easy to hit. My advice is be sure to question the host - who is almost always the mediator - about whether the Record function is being used. Outside the mediation world, a recording may be needed and appropriate, but not in mediation. I tell the parties at the beginning there will be no recording. Separately, whenever I enter and leave a breakroom, I announce it. This helps ensure confidentiality throughout the process.

Mediation Observations
Videoconferencing is a "cooler" medium than more traditional mediations. Table-pounding theatrics come across poorly in videoconferences. I believe it favors a television news anchor approach. All mediations favor the prepared and virtual mediations are no exception. Learn to use the Share Screen feature to display photos and documents.

Opening Sessions are of very mixed utility in videoconferenced mediations. Your view of whether that is a good or bad thing depends on your view of opening sessions in general.

The pace of mediation is no different than in-person discussions. I try to move the process along but accept that videoconference discussions have their own pace.

I have had little problem so far with people disappearing from the mediation. However, people are beginning to step away for other business. It is frustrating at times. Of course, this is true of in person mediations as well. People have to remained engaged. And I quite enjoy "teleporting" from one room to the next.

People should dress for the occasion. A widow, for example, might see someone wearing a track suit and be offended. Also, everyone is curious about the visual background of participants. I advise a neutral background and suggest that one consider this in choosing where you sit. My favorite so far is the lawyer who was in some sort of massage chair that was shaking him vigorously. I had trouble understanding but perhaps it was because I was laughing.

Overall, I think in-person mediation is better in some types of cases but that Zoom mediation is quite effective in most. Below please find my Protocol for Virtual Mediations for your review. The American Arbitration Association has also issued "AAA Guidelines for Virtual ADR Proceedings" and it is very thoughtful. I have borrowed from those Guidelines and adapted them to mediation. If you are interested in the topic, I highly recommend the  AAA Guidelines.

Protocol for Virtual Mediations
  1. Any video conferencing platform must protect the confidential nature of the mediation process and must comply with all applicable rules governing mediations.
  2. The platform should be easily navigable by the parties, recognizing the participants may not all be at the same technological level.
  3. The host must be able to verify the identity of all participants to protect the process and those participating in it.
  4. The platform must have a feature that permits the viewing of relevant documents.
  5. The mediation may NOT be recorded.
  6. If there is a platform failure or outage, teleconferencing will be used.
  7. I believe Zoom (professional) best satisfies the criteria outlined above.

Click Here to read original article on MEHAFFYWEBER
10 recommended tips for remote mediations

While in-person mediations may be preferred, some parties have been required to proceed with remote mediations to mitigate further delays during the coronavirus disease 2019 (COVID-19) pandemic. To help adapt to this procedure, we provide these 10 recommended tips for consideration when taking or defending remote mediations:
  1. Preparation. Virtual mediations require more − not less − advance preparation.The mediator needs persuasive position statements and exhibits before the mediation whenever possible. Consider advance discussions with the mediator for each side to preview positions.
  2. Agreements with opposing counsel. Before the mediation, confirm any party stipulations, starting times and limitations (including related to non-recording), and locations of participants.Send calendar notices, including to the mediator, that account for time zone differences.
  3. Governing rules. Know the rules in advance. Who can mute the host, mediator, parties? Will it be short or lengthy sessions with scheduled formal offline breaks? Will private caucuses be done in remote virtual rooms, will the parties participate through different platforms, or will the parties leave the joint sessions and rejoin when ready to resume discussions with the mediator?
  4. Mediation environment. Dress appropriately, from head to toe, and maintain professional visual surroundings.
  5. Technology. Technology is paramount for virtual mediations. In advance of the mediation, arrange to have access to an IT technician who will be available to help with any technical glitches.When possible, avoid handling the technical aspects unless it will not be distracting. Otherwise, arrange to have someone else handle the technology so that you can focus on the mediation.Know the operations and limitations of the chosen platform and have a backup technology plan.
  6. In-session communications. Have a system in place to relay private messages to participating colleagues or co-counsel and your client, without inadvertently communicating with the mediator or opposing counsel.
  7. Preparing clients. Provide detailed advance explanation to the client of the mechanics involved with the remote mediation and conduct a test run for the mediation incorporating all aspects of the proceeding.
  8. Settlement agreement. Have a draft mediated settlement agreement prepared in advance and an agreed system for executing remotely so that everything can be finalized if settlement is reached.
  9. Payment arrangements. Arrange for payment to the mediator in advance to ensure the mediation proceeds as scheduled.
  10. Stay focused. When engaging with the mediator during the virtual mediation, avoid texts, e-mails, and other distractions unrelated to the mediation that may unintentionally signal a lack of interest or commitment.

So You Want to Talk About Race
                              -- Ijeoma Oluo


Ijeoma Oluo  is a writer and speaker whose work on race has been featured in the New York Times Washington Post Elle The Guardian,  and more. She has twice been named to The Root 100  and received the 2018 Feminist Humanist Award from the American Humanist Society. She lives in Seattle.

Editorial Reviews

"So You Want To Talk About Race is a landmark book for our times. Oluo does more than deliver tough, blunt truths about the realities of racism, power and oppression. She also, in bracing fashion, offers a vision of hope; a message that through dialogue and struggle, we can emancipate ourselves from what she calls 'the nation's oldest pyramid scheme: white supremacy.' That is why I don't think this is merely one of the most important books of the last decade. It is also one of the most optimistic. To write such a book in these difficult times is in and of itself, a daring and beautiful act." by  Dave Zirinsports editor at The Nation and author of What's My Name, Fool? Sports and Resistance in the United States


"Ijeoma Oluo-writing on any subject-is compassionate brilliance personified, and I am so grateful for her work and her voice. She is the first writer I name when anyone asks who they should read to help them think about and navigate issues of race and identity, help them understand what solidarity means and what it requires of all of us. So You Want to Talk About Race is a book for everyone, but especially for people of color who need to feel seen and heard." by Nicole Chungauthor of All You Can Ever Know

"Ijeoma Oluo's So You Want to Talk About Race is a welcome gift to us all -- a critical offering during a moment when the hard work of social transformation is hampered by the inability of anyone who benefits from systemic racism to reckon with its costs. Oluo's mandate is clear and powerful: change will not come unless we are brave enough to name and remove the many forces at work strangling freedom. Racial supremacy is but one of those forces."
by  Darnell L. Mooreauthor of No Ashes in the Fire

"Read it, then recommend it to everyone you know." by  Harper's Bazaar, "One of 10 Books to Read in 2018"

"Impassioned and unflinching"

"Simply put: Ijeoma Oluo is a necessary voice and intellectual for these times, and any time, truth be told. Her ability to write so smartly and honestly with strokes of humor about race in America is heaven sent and demonstrates just how desperately we all need to be talking about race, and perhaps, more importantly, this insightful book shows those in power or privilege how they need to listen." by  Phoebe RobinsonNew York Times bestselling author of You Can't Touch My Hair and Everything's Trash, But It's Okay

"What Ijeoma Oluo has done, and continues to do, is nothing short of revolutionary -- she has created a conversational guide and laid out a movement-building blueprint for people of all races who are invested in self-assessment, open to being challenged, and committed to collective progress. One of the most important voices of our time, Oluo encourages us to be the conversation starters in our own lives and to keep talking -- someone who needs to hear us is listening." by  Feminista Jonesauthor of Reclaiming Our Space

"I don't think I've ever seen a writer have such an instant, visceral, electric impact on readers. Ijeoma Oluo's intellectual clarity and moral sure-footedness make her the kind of unstoppable force that obliterates the very concept of immovable objects." by  Lindy WestNew York Times-bestselling author of Shrill

"So You Want to Talk About Race strikes the perfect balance of direct and brutally honest without being preachy or, worse, condescending. Regardless of your comfort level, educational background, or experience when it comes to talking about race, Ijeoma has created a wonderful tool to help broach these conversations and help us work toward a better world for people of color from all walks of life."
 by Franchesca Ramseyhost and executive producer of MTV's Decoded and author of Well, That Escalated Quickly

"You are not going to find a more user-friendly examination of race in America than Ijeoma Oluo's fantastic new book. The writing is elegantly simple, which is a real feat when tackling such a thorny issue. Think of it as Race for the Willing-to-Listen."
by  Andy Richter, writer and actor

Click Here for Link to Book

"Racially discriminatory behavior may be reduced more effectively when racial issues are made salient rather than ignored or obscured." (1)
This week I've been thinking about white privilege. Ok, my white privilege. Like much of the planet I was horrified by the casual, almost routine asphyxiation of George Floyd. I wasn't surprised by protest and fury; nothing triggers these quite like injustice. But in the last few days I've noticed placards insisting this is my problem as much as anyone else's: 'End White Silence', or the more accusatory 'Silence Is Violence.' I've also noticed the protests spreading to my own city (Glasgow, Scotland) as we own up to the uncomfortable truth about our past. Our famous  'Tobacco Lords' were up to their necks in the slavery business. Exploitation is woven into our history.

So - what am I saying? What do I have the right to say?

The view from somewhere
There is no view from nowhere, so here's a little of my perspective. I'm a white male in my 60s, married with children and an urban dweller. I grew up in a city that looked like a monoculture (with a small Asian community) but was in fact riven with sectarian prejudice and class division. The 1970s seemed a dangerous time to be a young man. However, my skin colour meant I wasn't an automatic target. Other young men had to look for clues - in dress, accent, football allegiance - before deciding if I was friend or foe. And I had no particular reason to fear the police, though I now see this was as much to do with social class as race. A visiting US academic once expressed astonishment that in Glasgow: "you have white gangs?" Of course. Gangs sprout from poverty and disadvantage, not race.

I trained as a family mediator in the early 90s, when the field was dominated by women. Many had years of experience in dealing with people in difficulty and I was in awe of their presence and skill. But I can only recall one non-white mediator in Scotland. This changed little in ten years.
It was only when I took a Masters at a London university that I began to meet mediators from the UK black and minority ethnic community. But conferences and gatherings remained a largely white affair, particularly in the non-family world of commercial and court mediation. And even more strikingly so at the 'high-value' end. Again there are exceptions but they remain rare.

Yet the opposite is true of student mediation competitions. When I first took a team to the  UK Student Mediation Competition in 2009 I was struck by the diversity. There were easily more women than men and some teams were all non-white. The same was true when we started going to the  INADR tournaments in Chicago, and later when running joint summer schools in Glasgow with Chicago and Scottish students. I wrote about one memorable incident on  this blog.

So what do my eyes tell me? First, mediation as a skill and a philosophy is highly appealing to young people from ethnic minorities. Second, those at the top end of our profession are much more male and white than those at the beginning (they're not young either, but mediation takes a lifetime to learn and what's wrong with some lines and grey hair?) These observations raise two questions in turn: Why is it so? And what are we (me included) going to do about it?

Why is it so?
I learned some answers to the 'why' question at a US legal mediation conference in 2017. (2) The theme was diversity, but it was difficult not to notice that there wasn't a lot of it. One speaker (who belonged to at last two minority groups) made a simple point: mediation is, largely, a referral business. People tend refer to people like themselves. So it was tough for minorities to get a break, particularly at the high value end of the market.
Add to this the routine difficulty minority people face in obtaining employment. In Scotland in 2018 55.4% of the minority ethic population was in employment, compared to 75.1% of the white population. (3) We all know the importance of getting that first break. If you don't get started you don't gain experience. Without experience you don't build skills and grow in confidence. And without skills and confidence you almost certainly won't get into positions of leadership. Is it glass ceiling or sticky floor?

What are we going to do about it?

Here's where I want to get specific. A good number of people who read this blog are in positions of authority, leadership or seniority. If we don't initiate change we probably stand in its way. So what can we actually control? Well, one thing experienced mediators can often choose is their co-mediator (or 'assistant' if you must). Do we choose people who look like us?
Again I'm speaking to myself as much as anyone else. I think the time has come for the mediation profession to take seriously its stance on the issues raised by Black Lives Matter. I make a simple proposal: experienced mediators commit themselves to work with and mentor at least one person from a minority each year.

What would that look like?
It should include more than one mediation. In our mediation clinic at Strathclyde University I've noticed new mediators starting to get more comfortable/flexible at around the 20 cases mark. That's quite a lot, but a busy practitioner could certainly aim to offer 5 or more.
It should involve de-briefing. I now borrow John Lande's  'Stone Soup' idea for student assignments. Students are required to interview an experienced practitioner and write an anonymised case study of a recent case. The feedback is very positive. Practitioners and students clearly enjoy having the chance to talk in detail about the complexity of their decision-making. So I respectfully suggest that we make time to talk over what happened while it's fresh in the mind. My own practice benefited hugely from sharing an office with an experienced mediator and just chewing the fat after tough cases.
We should monitor ourselves. The emotional arousal of these two weeks will fade but the issues won't. Resolutions also fade unless we make a point of checking how we're doing. Or better yet, hold each other accountable. I throw out the suggestion that professional bodies could include this commitment in their annual practice requirements. Let's build positive incentives into our systems.

Do black lives matter to mediators?
I can't speak for anyone but myself. I can't control events in Minnesota but that does not let me off the hook in my own country. It has been difficult to write this post because of fear of being seen as a hypocrite. I haven't done this before now. That has to change.

The key issue is not how we feel but what we do. And the key question, do black lives matter to mediators, must also be answered in facts on the ground: in a year, two years, a decade, how diverse is our profession?

1) Izumi C, 'Implicit Bias and the Illusion of Mediator Neutrality' (2010) 34 Washington University Journal of Law & Policy 71-155, p. 146. Available from
2) 19th American Bar Association Section of Dispute Resolution Spring Conference, San Francisco, April 19-22, 2017
3) Black Lives Matter Scotland, slide presentation

Click Here for Link to Original Article on Kluwer

Paul Watzlawick's well-known axiom "you cannot not communicate" has taken on a new relevance in recent months. It means that silence and other non-verbal behaviour are just as much a form of communication as what people say. We cannot switch the communication channel off, at least not if it is analogue - meaning continuous. Take a mediation (or any other) setting in one room. When people are not speaking, they are communicating, and the non-verbal messages they are sending are being read by everyone else, consciously or unconsciously. Mediators and facilitators are constantly reading the room carefully, to see if there are messages that might need to be made verbal.

There are popular theories that argue that the messages we send are made up only to a smaller degree by our verbal communication, and that the non-semantic, which includes matters such as tone of voice, frequency and length of verbal utterances, and the non-verbal, which includes the language of our bodies and our attire, make up for larger parts of the message.

When communication is digital, meaning that it can be switched on and off, then Watzlawick's axiom applies too, though under different conditions. If I do not answer an email, I am communicating to the sender. The sender may be left guessing why and what my message is, but I have nonetheless sent a message, even if I did not intend to.
I have experienced this phenomenon in online training over past months. When there are a dozen or more participants and someone turns their screen black, or leaves the online session, or when cameras are not used due to lack of bandwidth, I am left wondering what their state of mind is. Have they lost interest? Have they got something better to do? Are they listening actively but unable to participate for good reason? I can only know by asking, which I have done using private chats. In analogue training, I can usually see when someone is drifting away - because I am watching their faces and their bodies. Online the need for verbalized feedback is so much greater.

In my online mediations and facilitations of meetings this year, mostly screens have been used. Even when I see the participants on screen there is a reduced sense of presence. The body is not talking. The face is, but it is harder to read. Here I have involuntarily come to rely on one of the underlying assumptions of modern mediation, which is that if people have something to say, and interests to promote, they will speak up for themselves. Autonomy matters, and perhaps more in online formats, where the mediator cannot so easily sense that someone is wanting to speak. People need to raise their concerns. And I have come to invite contributions even more frequently than I might do in analogue settings, asking if anyone has anything to add, and particularly if everyone is ready to move on with agendas when the moment seems right.

I most keenly noticed the difference between the analogue and the digital when I returned to facilitating a large (semi-)public community meeting recently. It was live. I was in a large physical space (an enormous converted barn) with around fifty people sitting in chairs dotted around the room - spread out due to the need for social distance. The matter at hand was sensitive, and would have a considerable effect on the participants' lives. As moderator, I felt able again to feel the energy in the room in a way that has not been possible online. And this was good.

I could see confusion, the frustration, the scepticism in faces and in the ways people were sitting. I could see them murmuring to each other and to themselves. Folding their arms and leaning back. Raising their eyebrows. Signalling with their eyes that they wanted to speak. And a few people smiling to themselves, others offering me encouragement in my role with their smiles. The organisers' physical presence mattered greatly too. It was more "honest" that they were standing there for real, to face the music.

I am sure that my own presence was also significant, as I took my position between the participants and the organisers. I was aware of my own body and the effects it might have. I walked around the room, sometimes shortening the space between myself and speakers. I used my hands, my arms and my eyes. This work was physical, and it mattered, as I was to a degree responsible for making the best of the physical space we were all within.

The organisers could have held this meeting online, and they might have had to if contact restrictions had not been relaxed. They would not only have lost some of the participants entirely, as they would not have had the technology to participate, they would also have lost the physical space 1) and the non-verbal messages that were so important. At some point they might have had to try an online format, or just inform the people concerned by post. Due to contact restrictions they had already postponed the meeting once.

It was right to wait. It mattered that relationship work was done face to face, that we could all see others' faces, and feel each others' presence. Online is fine in many contexts, and it can be effective and efficient in surprising ways. In other contexts, we need analogue communication.

Neuroscience, Mediation And Negotiation

 Podcast by: John Sturrock



"Here I wish to discuss just a few of the biases to which I regularly refer as a mediator. Usually I mention these when we are gathered for breakfast early in the mediation day and they serve as reference points throughout the day, often supported by visual aids. The simplest of these is the drawing of a piece of cheese showing how, from different vantage points, we can view things very differently. We all have our version of the truth, which is informed by our perceptions, our preconceptions, our misperceptions, our prejudging, our limited information, our past experiences, our hopes, and fears and so on. The danger is that we assume that this is all there is to see and are open only to information which supports our perspective. "
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Thank you for reading my newsletter, and as always, if you have any questions on any of the articles listed, do not hesitate to contact me.

Thomas P. Valenti
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