Resolving disputes in the midst of ‘social distancing’

The COVID-19 crisis is compelling us to think creatively about how we resolve disputes in an age of "social distancing."

Mediation and arbitration -- like most of law -- is a people-centric practice. It is about creatively aligning people torn apart by past acts that cannot now be undone. It is not mathematical. It is human. There is no one truth. We each see the past, present, and future a little different depending on our past and current circumstances and experiences. Jurors viewing the exact same trial with the exact same instructions often disagree on what happened and how the case should be decided. Even our most esteemed justices on the U.S. Supreme Court often divide and diverge in their opinions on the same case with the same law and the same facts. They too are human.

As humans, we communicate and mend the past by reading each other's nonverbal messages. Words convey our thoughts but the tone of our voice, our eye contact, and our body posture and movements often tell far more about our meaning than the words alone. It is no accident that in-person communication is the norm for trials, arbitrations, mediations, hearings, and oral arguments where our meaning and intent are of critical importance. It is even embedded in the confrontation clause of the Sixth Amendment. Social science underscores the importance of nonverbal communication. In 1971, Professor Albert Mehrabian published a book, "Silent Messages," in which he argued that listeners weigh the credibility of a speaker by relying on the speaker's words (7%), tone of voice (38%), and body language (55%). Subsequent social scientists have disputed Professor Mehrabian's weighting but none disagree that we humans derive meaning and understanding from the tone and body language of a speaker.

The COVID-19 "social distancing" response has challenged our ability to hear each other's tone or see each other's body language. We can no longer shake hands on a deal, gather in packed courtrooms or jury rooms, or meet for in-person mediations and arbitrations.

So how can we effectively communicate and receive critical nonverbal meaning in dispute resolution while maintaining our "social distance"?

As a mediator/arbitrator, I have found the answer lies in utilizing the conferencing tools offered by Zoom.us. Zoom is a website and an app that allows users to interact by audio (like a telephone conferencing system) and video (like a webinar, except everyone is simultaneously visible). The free version allows you to connect with up to 100 people simultaneously for a maximum of 40 minutes. One-on-one connections do not have a time limitation. Paid subscriptions allow for connecting up to 500 persons over an unlimited time period.

Zoom can connect people via their computers, tablets, mobile phones, or landline phones regardless of whether they have the Zoom app. While a Zoom app makes the connection smoother, users can connect by just using just a URL on their web browser or dialing a call-in phone number. When the host of the meeting sends out an invitation to participants, there is both a URL and phone numbers that participants can click on to join the Zoom meeting.

Once connected, the participants can see and hear each other on their computer, tablet, or mobile phone. Participants connecting by a phone number are limited to an audio connection.

Depending on the subscribed Zoom plan, Zoom offers a number of useful features for mediations, arbitrations, and other dispute resolution meetings.

• VIDEO. Since we convey much of our meaning through body language, the video portion of Zoom offers far more insight into the thoughts of others than just reading or listening to their words and tone.

• BREAKOUT ROOMS. Zoom's ability to divide the group into breakout rooms where only those in the room can see and hear the discussion of that group is extremely useful in resolving disputes where participants would like to privately caucus with their counsel, a mediator, or particular participants. This is similar to meeting in private in a separate room. Participants can be moved in and out of the rooms whenever needed. The host/mediator/arbitrator/judge can join the rooms and exit the rooms. The people in the rooms can be changed. New rooms can be added. Those in the breakout room who are using a computer, tablet, or mobile phone can see who is in the room and can know with whom they are, or are not, talking.

• SCREEN SHARING. All of the participants can share documents, photographs, video, or whatever they might have on their computers, tablets, or phones with others in the larger group or just in their private breakout room. A common whiteboard can be shared so that the group can add to or annotate a common visual. Live documents and spreadsheets can be shared and worked on jointly by the entire group or by the private breakout group.

• CHAT. Private or general messages can be silently passed between participants or the entire group without interrupting the meeting.

• ADDING AND REMOVING PARTICIPANTS. Participants can be added and removed during the course of the meeting as needed. There is a waiting room feature that will notify the host of a participant's presence but will not let the participant automatically enter the meeting until they are affirmatively invited in. Passcodes can assure only select participants can enter the meeting. Participants can be muted or removed from the meeting by the host.

It is not perfect. In-person meetings and the opportunity for side chats over coffee or snacks are better. But in the midst of this COVID-19 crisis, the Zoom platform is a convenient way to convey and receive essential verbal and nonverbal messages that are now being diminished by our current "social distancing." 