Student Lessons on Distance Mediation

Picture of person hanging up a telephone“Could we try and mediate over the phone?” I was a bit surprised by the response from the attorney when I called to let him know that the Small Claims Mediation Clinic’s courthouse mediation options had been curtailed by the Coronavirus. The Clinic, which was started by former Wisconsin Supreme Court Justice and retired MULS Professor Janine Geske, has been in operation since 1998. A typical Clinic day revolves around same day referrals for mediation cases from Court Commissioners in Room 400 of the Milwaukee County Courthouse. Cases are mediated then and there. In addition to the typical same-day referrals, this semester the Clinic received a number of referrals from judges dealing with civil cases. This particular case, a dispute between relatives, seemed tailor-made for mediation. I hesitated for just a second before saying yes, we would try mediating the case by phone.

Each of the 7 clinic students had mediated “real” cases at the Courthouse — alternating mediating or observing a classmate from week to week based on the available cases. Owing to the changes wrought by the pandemic, the Clinic students and I switched to meeting via video on Monday mornings. In keeping with the times, the students and I immersed ourselves in information about online dispute resolution (ODR), comparing different video platforms, discussing the challenges our local Small Claims Court faces, conducting simulated mediation sessions by video and email, and finding ways to adjust since the Milwaukee County Courthouse had to close to keep people safe. A telephone mediation would bring home the concepts in a way no simulation ever could, and, as fate would have it, the telephone mediation would take place the last day of class.

The call was scheduled, and an Agreement to Mediate with a Telephone Mediation Addendum was sent to the parties in advance. Taylor Hansen, a third-year law student and President of the MULS Alternative Dispute Society, mediated the case under my supervision. She did an amazing job. When asked how mediating by phone differed from the in-person sessions she conducted, Taylor had this to say:

“Mediating over the phone presents new challenges especially when you’re accustomed to mediating in-person disputes. One sizable difference is that the facial cues and body language you can use in person to clue you in to how someone really feels are no longer available. Instead, you need to listen for other indicators that might tell you how a party is really doing. Listening for long pauses and tone shifts becomes crucial as they become some of the only indicators of a party’s feelings throughout the process. While there are many other challenges as we continue to work with being safer at home, it is important to see the opportunities in phone and online dispute resolution as well. Coming to courthouse isn’t always convenient for parties that may have disabilities or demanding schedules and small children. This method may allow alternative dispute resolution to reach and assist more people. While it may take some time getting used to as a mediator, there are many opportunities when it comes to using online and phone mediation.”

The phone session lasted more than 3 hours, and parties have exchanged offers and counter-offers. Each party has some additional information to gather to help with the final negotiations, so parties have agreed to reconvene by phone for another session in early June, also by phone. As the saying goes, with crisis comes opportunity, and that was definitely the case for the Small Claims Mediation Clinic this semester.

[Cross-posted at Indisputably]

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