This process isn't for you

 

The following article reflects on my experience as the mediator in a recent case. Both the claimant and respondent have read this article before publication and have kindly given their consent for it to be published.

There’s a danger in any repeated endeavour that we become complacent, stop seeking challenge and lose some of our creativity. Whilst I don’t believe my mediation practice has quite fallen prey to this just yet, I’m still relatively young and certainly not bored of it, I have reached a level of confidence where mediation has become my normal. The big moments of learning are becoming less frequent, perhaps making them more noticeable.

That’s probably why I was both anxious and excited to take on a recent mediation that required significant changes to my usual process. The claimant, who lives with several inter-connected medical conditions, was keen to engage with mediation but did not have the capacity to communicate by phone, online meeting or face to face. Email correspondence was the only method that met their needs.

The respondent, on the other hand, had no such barriers and was comfortable communicating by phone or email. They were understandably concerned that, without face-to-face interaction, meaningful progress would be difficult.

Also there had been significant conflict between both parties in the past, making the situation tense.

After discussion with both parties, we agreed the mediation would take place as shuttle mediation by email. Initially, all communication would pass through me, although we left open the possibility of direct communication if it became appropriate. Given the conflict had been ongoing for some time, both parties welcomed this approach and seemed grateful for the opportunity.

Whilst feedback from both parties was positive, I cannot say with certainty that this was the right way to approach the mediation, or even the most effective, although an agreement was ultimately reached. What I am comfortable claiming is that I tried to uphold the core principles of mediation within a very different format. Below are a few of the decisions I made, some reflections on how they worked in practice, and a few questions I’m still left with.

Time-limited and forward moving

I wanted to retain mediation's time-limited nature. We agreed the email mediation would run over one working week (Monday to Friday), with emails exchanged during office hours. If no agreement was reached by 5pm on Friday, we accepted that mediation was not the right forum to resolve the dispute.

Building trust and rapport

This was the aspect I was most nervous about. My mediation style is conversational, often humorous, and relies on helping people relax and be themselves. I wasn't sure how that would translate into email.

I explained to both parties that this was my first time mediating in this way and asked for their patience. The format naturally felt more formal, so I made a conscious effort to write conversationally and encouraged both parties to treat the emails as a dialogue rather than formal correspondence.

Despite my initial concerns, I quickly developed a strong rapport with both parties and felt trust was established much as it would have been in a face-to-face mediation.

Empathy and understanding

My favourite moments in mediation are when people begin to see the situation from the other person's perspective and stop "othering" one another. I wasn't sure that would happen through email, but I saw evidence that it did.

There were several occasions where each party reflected thoughtfully on how the other had been affected and expressed genuine surprise at how reasonable and understanding the other's responses were. During one phone call, I even helped the respondent think about how to offer an apology. It was recognised and accepted in much the same way I have seen apologies land in face-to-face mediation.

Time pressures

I thought a week would be more than enough to complete a mediation in this format, but by Wednesday morning I realised we had barely reached the point that a typical face-to-face mediation might reach in the first hour.

Summarising, clarifying, paraphrasing and acknowledging emotions all take much longer over email, particularly when people are working and responding around other commitments.

By Thursday I found myself trying to move the mediation along with a growing sense of urgency. I still don't know whether that felt helpful or pressured for the parties. Perhaps, after months of stalemate, it was welcome. My instinct, though, is that people primarily want to feel heard, and at times I wasn't able to give conversations the space I would usually allow because the clock was always ticking.

That said, we did reach an agreement before the deadline, and I suspect the structure and momentum helped the parties move beyond a situation that had been stuck for some time.

So, would I mediate like this again?

Yes.

Not because it's my preferred way of working. I will always prefer sitting with people and having conversations in real time. But because it enabled someone to access mediation who otherwise couldn't.

As mediators, we often encourage parties to think creatively and adapt when circumstances require it. I think we should expect the same of ourselves. Sometimes that adaptation will feel unfamiliar or imperfect, but if it makes mediation accessible to people who would otherwise be excluded, it is worth the effort. The alternative is to say, "This process isn't for you," and I don't think that's an answer we should be too quick to accept.