If we think about the gaps in Gladwell’s stories as ellipses on a continuum, it’s easy to see the similarities in Gladwell’s approach to writing and what happens in litigation. At several points in a legal dispute, the parties and their counsel leave a piece of their puzzle — their conflict — unresolved and ask strangers (a judge, arbitrator, or jury) to fill in those “gaps” with rulings.

Trial lawyers know that every trial is essentially a reenactment of a story. Whether it’s a story about good and evil, the bond of a man’s word, or anything else, at its core – every trial is a morality play in which the parties ask a judge or jury to write the closing scene.

The analogy of an incomplete story that invites a stranger to write the ending might be intriguing to an award-winning author, like Gladwell. But to parties in litigation, the idea of handing control over the outcome of a lawsuit to complete strangers can be stressful and full of uncertainty.

It’s through mediation, however, that parties are able to take control of their own ending. Mediation is that one point in the life cycle of a lawsuit in which the parties are jointly focused on figuring out – if they can – how to end the conflict on terms acceptable to them financially, emotionally, and in all other meaningful ways.  

The task at hand in mediation is not easy, however. Whether the mediation session occurs before a lawsuit is filed or while it’s pending, it’s common for emotions to be high, lines of communication to be strained, and for a certain amount of fear of the unknown to impact the decision-making process. For these reasons (and many others) parties (and even their counsel) often begin a mediation doubtful of its usefulness.

And this is where Gladwell’s genius stands out. An ending left unwritten is an ending open to a host of options. An ending that can be shaped by imagination.

Imagine attending a concert from the comfort of your home versus being in the crowd. In both places, you’ll see the same choreographed routines and hear the same chords and lyrics. But the experiences are drastically different. At the live concert, you are immersed in the moment. You are fully and completely engaged. You don’t just watch the concert, you are a part it.

More than two years ago the pandemic caused the worldwide shutdown of just about everything, including in-person mediations, forcing us to substitute virtual human connections through online applications like Zoom for those previously experienced in-person.  

Fast forward and today the consensus is that mediating in a Zoom-room is – and will continue to be – an effective and cost-efficient option for parties wanting to negotiate a resolution to conflicts. My office, like many others, will continue to offer remote mediations and arbitrations for the foreseeable future simply because parties want options, and because it works.

But, as organizations and courts transition back to in-person meetings, social events, and trials, conversations about whether to mediate in-person again are popping up. Once again, parties and their counsel feel they have choices – not just about whether to mediate, but how and where to mediate.

As parties and their counsel start to talk strategically again about where and how to mediate, it seems like a good time to review some of the differentiators between remote and in-person mediation experiences.

Confidentiality. Whether or not mediation is conducted in-person or remotely, confidentiality is always important. But in some cases parties are more concerned about confidentiality than in others. For example, in a trade secret dispute the importance of confidentiality will be viewed differently than in a condemnation matter where the subject is of a public concern.

On balance, because the mediator can control who physically enters a space during in-person mediations, confidentiality is easier to ensure during an in-person mediation.

Enhanced non-verbal communications. The 7-38-55 principal is a widely known rule of thumb about how communication happens. According to the rule, about 7% of communication between humans occurs through spoken words, 38% through tone of voice, and the rest – 55% – through body language.

While body language certainly includes facial expressions that are usually visible on-camera through Zoom, there are other cues such as body posture, fidgeting, and finger tapping that are not typically visible in remote mediations.

Given the significance of body language to the effectiveness of communication, in negotiations involving sensitive, personal, and/or life-changing issues, parties may deem an in-person mediation more suitable for the subject-matter and as a way to eliminate barriers to communication that distance brings.

Thinking a little more collaboratively doesn’t have to mean thinking less competitively, however. It simply means thinking about what will capture and keep the attention of the target audience at mediation – the other party – and motivate it to decide to settle. This exercise invites each party to do what many veteran litigators often do naturally anyways, which is to consider the conflict and possible remedies from the other side’s perspective.

To do this, and to make the most of a mediated negotiation, parties should plan to prepare a mediation plan well-before the day of the mediation session. The plan will help guide the analysis and many decisions that will be made during the mediation, and should raise the prospects of reaching resolution.

To help jump-start the exercise, the following are a few things to consider.

First, be mindful that a series of rejections will always precede a mediated settlement. So plan for them. In other words, pay homage to the process by anticipating several rounds of negotiations. Know that it won’t be any easier to convince the other side to accept your point-of-view or proposal than it will be for them to convince you to accept theirs. 

No doubt mediated negotiations are not easy negotiations, even with a plan. But parties that prepare for a difficult negotiation are less likely to let emotional reactions – their own or the other side’s – interfere with, derail, or diminish progress made during negotiations. 

Instead, those parties recognize and appreciate the difference between influencing the other party and controlling it. They know that nothing any party does controls what the other party will do. However, they also know that parties can – and do – influence each other’s proposals in a number of different ways. For example, every mediated negotiation involves the theory of reciprocity – giving something and getting something in return. But reciprocity is not the only way parties influence each other. For example, showing empathy and respect in the opening joint session are but just a couple of other ways parties influence each other. But no matter how much one side influences another, neither is able to control the other.

Over the past 2 years, most of us have mostly communicated – if not exclusively communicated – with our colleagues and clients behind keyboards and in front of computer screens. Returning to work in the same physical workspace will certainly be a bigger adjustment for some than for others. With a number of people changing jobs or starting their careers there are sure to be some new faces roaming the halls. In many cases, the physical workspaces themselves have changed too to adapt to physical spacing concerns in post-COVID working arrangements.

When two-or-more humans interact, there is always a chance for conflict. But as professionals and team players, most office disagreements can be addressed with just a little common sense, courtesy, and – perhaps – a well-placed bit of humor and humanity.

The following are just a few suggestions – reminders, if you will – to help you deal with potential missteps as the transition and commute back to the office continues.

Step One:    Step away from the keyboard and videocamera.

This tip may seem obvious but even before COVID many of us may have relied too much on our keyboards. This probably won’t come as a surprise, but studies show that conflict can be fueled by over-reliance and usage of communication technologies. As an antidote, the obvious thing to do is spend some time meeting in person and talking through the pressures people are facing in order to build rapport, trust, and a team.

But don’t take my word for it, in his book, The Speed of Trust: The One Thing That Changes Everything, Stephen Covey says that “Research shows that face-to-face communication regarding attitudes and feelings is 7 percent what people say, 39 percent how they say it, and 55 percent body language.” It’s harder (sometimes impossible) to read body language through a computer screen.

So now that you’re back in the office, grab a couple of cups of coffee, walk down the hallway, and spend a few minutes in front of your colleague’s desk to catch-up or talk about that thing he (or you) said or did that you can’t get off your mind.

Step Two:       Seek to understand the concern from the other person’s perspective first.

If you’re needing to talk about something sensitive or possibly controversial, approach the conversation with the goal of seeking to understand before wanting to be understood. While it’s doubtful an office conflict will grow into a legal dispute, the story Covey tells about when he first became CEO of the Covey Leadership Center illustrates the power and importance of listening first.

According to Covey, he took the helm of the Center while it was involved in eight legal disputes that had dragged on for too long. Those legal disputes were consuming “enormous time and energy, and [he] was frustrated because [he] felt [they] should be focusing [their] efforts elsewhere.” So he set a goal to resolve them all within two months, and met it in all but one instance.

His ”basic approach was to listen to the other parties first.” (emphasis supplied). By engaging the other party in a conversation, Covey gathered information about the conflict and demonstrated a desire to understand their perspective. By simply listening, he “created the openness, trust, and understanding needed to come up with solutions” that worked for everyone.

A powerful thing happens when you talk through difficult issues with someone and listen well. You open the door for each of you to better understand the other, especially if you really care and show an interest in wanting to build trust and a team.

Step Three:     Approach the conversation with an open-mind and curiosity.

If you are about to engage in a difficult conversation, it’s possible there will be a difference of perspective or opinion about whatever it is that will be the topic of conversation. And that’s ok.

Embrace the difference and be curious about it. Ask open ended questions. Or, even better, don’t ask a question at all. Invite the other person to share her thoughts through the simple phrase: “Tell me your perspective on ___.” or “Tell me more about that.”

To put yourself into the right mindset for this conversation, you might try thinking like a scientist, the approach recommended by Occupational Behaviorist Adam Grant. Scientists are instinctively curious and, because they must be intellectually honest in their experiments, they don’t approach their work to achieve a particular outcome. They approach each experiment curiously – to learn something – not necessarily to influence.