Communication Modes and Mediation in a Post-pandemic World

Communication shapes the mediation process, influencing trust, negotiation dynamics, and dispute resolution outcomes.

Associate Professor Dorcas Quek Anderson from Singapore Management University explores how different communication modes – face-to-face meetings, video-conferencing, audio communication, and text messaging – affect mediation effectiveness. Her research highlights the strengths and limitations of each mode, offering a framework to help mediators choose the right approach for different disputes in a post-pandemic world.

Read the original research: library.smu.edu.sg/solresearch/4489/

Transcript

Hello and welcome to Research Pod! Thank you for listening and joining us today. 

In this episode we’re looking at research from Singapore Management University’s law school into the most appropriate communication channels for mediation.

An alternative to litigation, mediation involves a neutral third party helping those involved in a dispute to work towards a negotiated settlement.

We might assume that this is best done face-to-face. But the Covid pandemic forced many things online, and now video-conferencing is also part of the mediator’s toolkit, along with text messaging and audio communication.

Associate Professor Dorcas Quek Anderson’s research evaluates the evidence on how these different modes of communication affect the practice of mediation.

Published by the Pepperdine University within the US in the ‘Pepperdine Dispute Resolution Law Journal’, the in-depth research draws from a range of disciplines, including negotiation, communication studies, and psychology.

We’ll cover some of the key takeaways today, but for more on this far-reaching topic, please head to the journal linked in our episode description.

So what’s involved in mediation?

In the 1990s, American legal professors Frank Sander and Stephen Goldberg wrote what’s become a classic textbook on alternative dispute resolution, arguing the need to, quote, ‘fit the forum to the fuss’.

As Dorcas explains, the ‘forum’ refers to the dispute resolution options available to resolve a dispute. This can be an evaluative option that leads to a formal adjudication which determines parties’ rights according to agreed rules on a set of facts. Alternatively, it might be a consensual option that requires a more informal exploration of parties’ interests.

Mediators have to know the nature of the ‘fuss’ to determine which forum is appropriate and more likely to overcome barriers to settlement.

Above all they need to consider the different parties’ underlying objectives. These can vary, for example, from obtaining vindication or setting precedents, to protecting privacy, maintaining relationships, or minimising delays and costs. 

Mediators also have to look at the impediments to settlement. These might be poor communication between the parties, different views of the law or facts, or the desire to vent emotion or establish a principle.

For example, one company might want to sue another for non-payment of delivered goods. A mediator would want to know whether the first company primarily wants to recover the debt or to re-establish the business relationship. 

If it’s the latter, the consensual process of mediation could fit the bill. However, the impediment to settlement could be the two parties’ different views of the facts, and this could suggest an evaluative process is needed. It might also be appropriate to save time and cost by beginning with mediation, and if necessary moving on to evaluation.

Dorcas adapts Sander and Goldberg’s seminal phrase ‘fitting the forum to the fuss’ for the title of her paper – ‘Fitting the Communication Forum to the Mediation Fuss: Choosing the Appropriate Communication Mode for Mediation in the Post-Pandemic World’.

In it she explores how the concept can help mediators decide which communication modes to employ for the mediation process, not least because the choice of communication channels affects the dynamics of negotiation and mediation.

Focusing on face-to-face meeting, video-conferencing, audio communication and text messaging, she reviews the research evidence for the different modes’ attributes and how humans react to them.

The relevant research considers the ‘richness’ of the different channels in terms of the verbal and non-verbal cues associated with them. It also considers their ‘synchronicity’ – whether they allow people to communicate in real time.

For example, in addition to what is actually said, face-to-face meeting – and to a lesser extent video-conferencing – are ‘rich’ in that they also allow us to infer meaning from body language and tone of voice. Text messaging can’t do this.

And while face-to-face meeting, video-conferencing and audio communication are synchronous and allow immediate feedback, text messaging – provided that it’s not dashed off in anger or the middle of the night! – can allow time for reflection and be edited before sending.

There’s also evidence that some modes can compromise the quality of communication.

For example, despite its prevalence and convenience, people report finding video-conferencing frustrating, because they have to wait their turn to speak. As a result participants may switch off, metaphorically if not literally, and even engage in other tasks while remaining on screen.

Research has also shown that ‘Zoom fatigue’ can also lead to participants becoming uncomfortable with continuously eye-gazing others as well as themselves. They may in addition be anxious about the way they present themselves online.

Socio-psychological theories are therefore highly relevant to communication in mediation, particularly social presence theory, which examines the degree to which we sense the presence of other people in different communication modes. 

Research suggests, for example, that diplomats find video-conferencing inferior to face-to-face meeting because they can’t, quote, ‘sense, judge and feel’ the other person. Other studies suggests that in-person negotiations are less hostile than virtual ones, and that stone-walling is more common in video-conferencing than face-to-face meeting.

In short, there’s a lot for mediators to think about, not least because they have a multi-faceted role which demands they act as host and referee, as well as guide, and master communicator and translator.

To help, Dorcas proposes that mediators should have five key objectives, each depending on effective communication between everyone concerned.

These include building rapport and trust between all parties, and facilitating mutual understanding of different people’s perspectives and interests. 

They also involve managing power imbalances and safety concerns, for example in family cases where there can be a risk of physical or emotional violence to vulnerable parties.

Another goal is procedural justice – ensuring that everyone has a voice and is treated with respect, and that both the mediation process and outcomes are perceived as fair. 

Last but not least, mediators need to encourage creative and collaborative problem-solving.

Dorcas finds that different communication modes are more suited to some objectives than others. She has also proposed a framework to help mediators decide which mode is most appropriate for a given objective, based on the existing research.

For example, rapport building is better when there is higher social presence and people have the opportunity to observe each other’s non-verbal as well as verbal cues, such as in face-to-face meetings. Video-conferencing does this to a lesser extent, but research suggests it’s only marginally better than audio communication. Interestingly, research also suggests that audio communication is better than video-conferencing at facilitating turn-taking in debate. Perhaps not surprisingly, trust takes time to build and is less likely to be gained if communication is confined to text messaging.

Facilitating mutual understanding is linked to participants being able to read each other’s emotions, which is more likely to happen in face-to-face communication. When negative emotions and hostile behaviour are issues, we might think it’s better to keep parties physically apart. But evidence suggests that virtual negotiations can be more hostile than in-person meetings. Researchers have also found that text messaging and audio communication can be unreliable in transmitting emotions.

As for the third objective, ensuring procedural justice, Dorcas finds the research literature has so far been mostly based on face-to-face meetings. For example, evidence from the criminal courts suggests that prisoners who take part in legal hearings via video-conferencing don’t always feel heard and can find the process disempowering. Similar effects might occur in mediation and could risk the legitimacy of the process.

Managing power imbalances and safety concerns are particularly important in cases of intimate partner violence.  In such cases mediators might wish to have separate face-to-face meetings with the different parties, keeping them apart to reduce fear of emotional or physical intimidation. The evidence on video-conferencing is mixed. On the one hand it can be perceived as less formal and help to reduce tension. On the other, it can amplify intimidating behaviour and be open to illicit recording, as is audio communication.

Evidence suggests that the final objective – collaborative and creative problem-solving – is threatened if people overly display negative emotions. Text messaging is particularly open to displays of hostility. And research among diplomats shows that coercive tactics are more commonly demonstrated in video-conferencing than in face-to-face meeting. Though not all studies agree, participants are also less hostile in face-to-face meetings. It is also notable that videoconferencing as opposed to in-person meetings has been found to hamper creative idea generation because of the narrower cognitive focus on a screen. This has implications on the need to arrive at creative solutions and create value within mediation.

Dorcas acknowledges that in the post-pandemic world we’re still adjusting to the different communication channels at our disposal. For example, in time we’ll no doubt adapt and learn how to build rapport using text messaging.

But for the moment, mediators would be wise to consider this wide-ranging, multi-disciplinary research to ensure they fit the mediation communication forum to the fuss of the dispute, and take into account participants’ likely behaviour across different communication modes.

As Dorcas concludes, mediators who are aware of the constraints and advantages of the different means of communication can proactively consider strategies to both overcome the difficulties and harness the benefits associated with them.

That’s all for this episode. While we’ve explored some key insights from Professor Quek Anderson’s research today, there’s lots more to uncover. Check out the episode description for links to the ongoing research and further reading on this fascinating topic. Thanks for listening, and don’t forget to stay subscribed to Research Pod for more of the latest science!

See you again soon.