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First Page

115

Last Page

177

Document Type

Article

Abstract

Since the COVID-19 pandemic, mediations have shifted dramatically from face-to-face settings to the virtual realm, resulting in the widespread acceptance of using virtual communication channels, including videoconferencing, audio calls, and text messaging. With the waning of the pandemic, mediators and parties presently face a plethora of choices in fitting their mediation to the appropriate communication channel. Thus, having an accurate, evidence-based understanding of different communication modes’ impact on mediation is necessary to design an optimal mediation process. Some decades ago, Sander and Goldberg formulated the phrase “fitting the forum to the fuss” to describe the process of choosing the most appropriate dispute resolution option to fit characteristics of each dispute and parties’ needs. Currently, there is a palpable need for the fitting of a rather different forum—the mode of communication—to the fuss. This article discusses how parties can best customize the mediation process by fitting the “communication forum” to the “mediation fuss.” To understand the characteristics of communication forums, the article draws from a range of disciplines to distil the relevant research on four modes of communication: face-to-face interaction, videoconferencing, audio calls, and text messaging. The article proposes discerning the “mediation fuss” by examining disputants’ objectives, likely obstacles to resolution, and the likely mediation model to be utilized. It argues that these factors enable the mediator to ascertain which of five goals are most applicable to the particular dispute: building of rapport and trust; facilitating mutual understanding of perspectives and interests; managing power imbalances and safety concerns; ensuring procedural justice; and encouraging creative and collaborative problem-solving. Relying on current research findings, the article analyzes the impact of differing communication forums on these five mediation goals. Lastly, it proposes a basic framework for fitting the communication forum to the mediation fuss. This framework aims to encourage mediators to consider, in consultation with the parties, the most appropriate communication mode to convene mediation for the particular dispute and to thoughtfully modify their mediation techniques and tools to suit the relevant communication mode.

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