Effective remote communication involves the intelligent application of approaches and technology to the functions of the dispute resolution practitioner. Intelligent application integrating efficiency, effectiveness, and ethics enables clients to feel safe and trust communicating in that remote environment. Below are a few important communication components for dispute resolution practitioners, including lawyers.
Trust = trustworthiness + competence
Trust has two components: trustworthiness and competence. A lawyer needs both to communicate well in remote work. Trustworthiness is in the character one portrays in remote communication, while competence is the ability to use the technology proficiently.
Transparency in Communication
The selection and transparency of, and the comfort, competency, and confidence in, the approaches and technology the practitioner uses with clients require the client’s informed consent. This is achievable through communication, disclosure, preparation, technical support (whether directly by the practitioner or indirectly by the third-party technology providers), and agreement. Also, flexibility and alternatives are important in supporting these objectives, since technology can be disrupted.
So, practitioners should exchange information with and obtain agreement from clients about interested third parties, time limits, accessibility, including disability, such as physical and technological, and cross-cultural and/or cross-border requirements, such as cultural, political, regulatory system, time zone, and geographic distance differences.
Clients’ Privacy and Security
Privacy and security are provided by both the approach and technology providers and how and why the approach and technology are being used, including the practitioner’s:
- policy on recording communications;
- policy on document management and record retention;
- policy on what constitutes a valid signature to an agreement, such as e-signatures;
- disclaimer that it is impossible to guarantee that information shared remotely cannot be compromised.
It is important that the practitioner not only disclose and exchange the privacy and security information mentioned above, but also obtain agreement. Practitioners must also both identify and resolve any conflicts of interest concerning the parties and create an atmosphere in their use of approaches and technology which does not create the perception of conflict of interest. These information disclosure, exchange, and agreement steps enable clients to feel safe in and trust remote communication.
Practitioners should be aware of and disclose to clients the communication impacts of preparing for and conducting remote communication in various approaches and technology, including any practitioner or inherent bias in the approach or technology, technical requirements for the effective use of such technology, and communication adjustments.
To illustrate this, let’s look at the preparation part of a client dispute resolution process and compare the impacts of using messaging, audio and/or video technology to communicate. Messaging preparation does not involve scheduling if the communication is asynchronous as it does if it is synchronous, but setting response expectations is necessary. Audio preparation involves addressing background noise, distractions, and considering a seating chart to create a visual space. Finally, video preparation involves the screen frame, background, and lighting.
In each of these examples, the focus is on preparation differences rather than similarities among these different types of communication technology.
Another example of impacts based on the remote approach and technology being used is the diminishing nonverbal communication as you go from using video versus audio versus messaging, with a complete absence of nonverbal communication in messaging and a tendency for participants to infer nonverbal communication despite its absence. However, it is possible for messaging alone to communicate context, tone, and emotion by using words with feeling, empathy, confidence, curiosity, and concern.
Messaging, Audio and Video Communication
Looking more in depth at the differences among messaging, audio and video with verbal communication, in messaging, the practitioner should establish expectations for responses rather than the order of speaking, as in audio and video. With nonverbal communication, one should make eye contact with the camera in video and pay attention to tone of voice and pace of speaking in audio. And, with environmental communication, set expectations about how long the process will take in messaging, choose technology to suit a lengthy process or schedule multiple conferences in audio, and prepare and manage time for parties away from the screen in video.
Looking at the similarities among messaging, audio and video with verbal communication, review the technology being used in the introduction and reiterate what is being said for clarity. With nonverbal communication, do regular reiterations of what is being said for clarity, and note any emoji interpretation standards and any other nonverbal cues, such as time between communications and punctuation. And, with environmental communication, confirm that parties are comfortable in their physical environment.
And, looking at preparation for messaging, audio and video, one should choose and test the virtual (and physical in audio and video) spaces the practitioner and parties will each use, agree on the dress code, and keep a relatively clean screen if screen sharing in video. Check in often in asynchronous messaging, use the technology security settings, arrive early for joint conferences to resolve any issues and greet parties and any agreed-upon participants, and have good agreements (both engagement and process) in place.
Back in May, Microsoft announced it would be launching the very first Asia-Pacific Public Sector Cybersecurity Executive Council to un...
How Can Lawyers Improve Their Remote Communication Skills?
Obtain training to improve these skills. There are an increasing number of training programs that focus on remote work, including hybrid work, which is a combination of remote and in person communication approaches and technology. These programs are generally based on the trainer’s practical expertise, the growing body of science in remote communication, and the evolving development of technology impacting the options and features available in remote work. One such training program that dives deep into remote communication in the context of online dispute resolution and provides practical experience through messaging, audio, and video mediation simulation exercises is Learn How to Communicate Online by ODR Foundations Training.
Lawyers can benefit from training that focuses on online dispute resolution since many of the same principles and skills apply to remote litigation which apply in remote arbitration, mediation, and negotiation. Also, there are organizations through which lawyers can learn more about these skills and the available technology. Remote work is technology-related, so it is a rapidly evolving and developing area.
As explained above, there are many adjustments and considerations the remote practitioner must consider and implement throughout the process to ensure that clients feel safety and trust in the remote environment.
Susan Andrews is Founder and Principal of Andrews Dispute Resolution. Susan is an Active Member of the Kentucky Bar Association (KBA) and both a Member and Officer (Vice Chair) of its Alternative Dispute Resolution Section, a Life Fellow of the Kentucky Bar Foundation (KBF), an International Mediation Institute (IMI) Qualified Mediator, a Volunteer Mediator of the Fayette County District Court Small Claims Mediation Program, a Member of the American Bar Association (ABA), its Dispute Resolution Section, and its Online Dispute Resolution (ODR) Task Force Working Group III, Guidance with Respect to Special Issues Relating to Private ODR, a Certified Dispute Resolution Analyst of NextLevel Mediation, an Associate Member of the International Council for Online Dispute Resolution (ICODR), an Individual Panel Member of ADR ODR International, and a Fellow of the World Mediation Organization.