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Zoom Mediation by Video... Not So Fast

COVID-19 introduced many changes to the practice of law, not the least of which was the proliferation of video conferencing platforms. They have become much more commonplace in lieu of in-person hearings, depositions, and even mediations. While the technology has been around for a while, the current state is much improved over older, clunkier attempts, and it continues to improve. But it isn’t the same as meeting in person. We can complain about its failings and inadequacies, or be aware of its limitations and adjust accordingly. Here are some things to consider with respect to mediation by video such as Zoom or really any other video interactions.

Human communications involve more than the spoken word. Just as hearing words verbalized creates the opportunity for enhanced communications beyond the written word, being physically present during the transmission provides the opportunity for even more. Our body language says a lot about what we are saying, either as we say it or as we listen. The way someone sits or stands, holds their arms or hands, moves their body, and tilts their head all communicate something. These movements (or the lack of them) may reinforce what is being said or counter it. Likewise, they can signal whether someone finds what they are hearing to be credible and also give clues as to how they feel about what they are hearing. Facial expressions, whether intended or subconscious, are only part of how we communicate with our bodies.

Communicating via video conference means that the messages that we usually communicate via body language are significantly impaired if not gone. This is good to the extent that you want to prevent “saying” something with your body language but bad to the extent that your body language cannot help you communicate what you want the other party to see, hear or feel. If you aren’t aware of your body language, it may be good that the other side cannot read your thoughts and feelings as well by video conference. But, if you are keen to interpret body language, you will be handicapped. The reality is that we all interpret body language communications even subconsciously from years of life experiences.

While video conferences diminish the viewing of a lot of body language, they enhance others such as facial expressions. With a participant’s view limited to others’ faces, every twitch, wince, and slight grimace takes on heightened scrutiny. In face-to-face interactions, you generally know when someone is engaged in what you are saying, and at a minimum, whether they are looking at you. You communicate a great deal with expressions, both intentionally and unintentionally. But on video conferences, you cannot always tell if someone is looking at you. So, maintaining a poker face when you want to prevent sharing additional information is even more important, but intentionally using facial expressions to enhance your communication can help make up for what you are not able to communicate with other body languages.

Communicating via video conferencing is here to stay. With practice, we can adapt.



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