As a result of the COVID shutdown in 2020, the mediation field, like many professions, has become a flexible process. Initially, attorneys hesitated to engage in online mediation. Now, however, participating on a video platform appears to be the preferred method. As with an in-person mediator, a virtual mediator must develop a rapport with parties that enables the mediator to engender party trust. If the participants find a mediator to be trustworthy, they will trust the mediator enough to be candid, sharing valuable information that a mediator may use to uncover underlying motivations and interests and foster an amicable resolution.
Mediators may be asking themselves whether it is more difficult to acquire trust online as compared to an in-person proceeding. A study conducted in 2018 shows that videoconferencing platforms enable parties to communicate and trust others to essentially the same extent as a face-to-face encounter.[i]
The empirical research study indicates that within the context of a mediation simulation conducted as part of online dispute resolution (ODR), mediation participants trusted their mediator to virtually the same degree whether they engaged in face-to-face mediation or virtually using a video-collaboration environment known as telepresence. Data was analyzed from a small-scale experimental study (N=59. The research study concluded that there was no statistically significant difference in the extent to which participants trusted a mediator in all contexts and factors—communication mode (face-to-face or telepresence); age; gender; educational level; familiarity with and use of a video-collaboration environment such as Skype, FaceTime, or a similar platform; and an individual’s predisposition to trust. Similar results applied to perceptions of the mediator’s trustworthiness.
Trust and Trustworthiness
Interpersonal trust is a social concept because it relies on human interaction; it involves an individual’s reliance on another to fulfill a promise. Because the trustor lacks control over his counterpart, he becomes vulnerable by assuming a risk that his counterpart will fulfill a promised action or duty. Feelings of trust are affected by perceptions of satisfaction or attraction, interpersonal visual cues such as smiling, and the trustee’s ability, integrity, and benevolence. Reputation and past experiences also influence feelings of trust.
Whereas trust signifies the trustor’s willingness to rely on another, trustworthiness includes a set of beliefs about the trustee that precedes the trustor’s willingness. Trustworthiness, therefore, is a precursor to trust and is characterized by one’s capability (level of competence), benevolence (ability to do good for another), and integrity (capacity to imply morality and credibility).[2]
A virtual mediator must pay particular attention to his or her appearance, mannerisms, and spoken words. For example, by explaining the mediation process and the role of a mediator, the mediator demonstrates competence. One could go so far as to refer to statutes or court rules; the California rules of court state that a mediator “shall” inform the parties that a mediation is voluntary, and they have the right to end the process. By simply inserting the words, California Court Rules require me to inform you that..., creates a heightened level of knowledge and hence competence.
Mediators should choose their words carefully. Smiling and portraying a positive attitude in both words and actions helps to illustrate benevolence, which is the second element of establishing trustworthiness. Finally, perceptions of the mediator’s credibility, which include salient characteristics of honesty, reliability, and integrity, meet the third element of trustworthiness.
Telepresence and Videoconferencing
Telepresence is the extent to which one feels present by means of a communication platform rather than location in an immediate physical environment. Highly sensitive microphones and special cameras that automatically zoom in and pan the room, generating vivid and interactive dimensions, enhance this sense of presence. A telepresence platform helps participants track the flow of a conversation better than videoconferencing because the cameras allow participants to have direct eye contact, since they do not have to look into a computer-mounted camera as with videoconferencing.
Many mediators are now using Zoom platforms to mediate disputes. Inasmuch as Zoom limits visual communications to one’s upper torso, it still enables participants to see facial expressions and gauge the tone and pitch of speech. Participants can feel verbal and social cues happening in real time, yielding a good communication flow akin to an in-person experience.
The Empirical Research Study
The purpose of the research study was to examine the extent to which parties trusted a mediator when communicating by telepresence. Students volunteered as disputants in a simulated mediation. In each simulation, one disputant interacted with the mediator in a face-to-face context, and the other disputant communicated with the mediator via telepresence.
The measures of the main variables were based on two separate questionnaires. Prior to the mediation simulation, participants participated in a survey of questions to test their predisposition to trust others based on Julian Rotter’s scale for the measurement of interpersonal trust.[3[ After the simulation, participants answered twenty-four survey questions based on research regarding trust and trustworthiness. Among the post-mediation questions, two direct outcome measures were examined: trust in the mediator and trustworthiness of the mediator. Thus, some questions related to the participant’s personal interaction with the mediator and others related to their personal perceptions about the mediator. In addition to the mode of communication, other variables that were measured included gender, age, educational attainment, and frequency of involvement with video-collaboration communications such as Skype, FaceTime, or a similar platform (Note that this study was conducted prior to the prevalence of Zoom and Microsoft Teams).
Of the 59 recorded survey responses, 50 participants indicated that they strongly agreed with statements that “I could trust the mediator” and “The mediator was trustworthy,” whereas 9 participants mildly agreed with each statement. Whether participants communicated with the mediator through telepresence or face-to-face, they were equally likely to trust the mediator and perceive the mediator as trustworthy. The final result is particularly noteworthy since almost two-thirds of the participants showed a predisposition to distrust rather than trust prior to engaging in the mediation simulation.
Even though the variation was minimal, my co-author, Dr. Soomi Lee, and I examined the outcome variation, focusing on the 50 participants who strongly agreed and the 9 participants who mildly agreed that they trusted the mediator and felt that he was trustworthy. Our statistical analysis was limited due to minimal variation in the outcome variables, trust, and trustworthiness. For example, a logistic regression analysis can be ideal, but difficult to conduct. We, therefore, focused on a series of t-tests and Analysis of Variance tests. A detailed explanation of the factors that affect the degree of trust and trustworthiness, as well as a detailed analysis of the study, can be found in a law review article referenced below.
Conclusion
The findings are consistent with earlier research that illustrates the richness of an electronic communication medium may stimulate levels of trust and perceptions of trustworthiness, similarly to a face-to-face environment. These findings are significant as our world becomes smaller, forcing disputants in distant locations to find efficient, economical forms of ODR.
[i] Since the onset of the COVID pandemic in 2020, numerous theoretical articles have been written about trust in an online platform; however, I have not found other empirical research that attempts to measure trust or trustworthiness in a telepresence platform.
2 Roger Mayer et al., An Integrative Model of Organizational Trust, 20 Acad. of Mgmt. Rev. 709, 712 (1995).
3 Julian B. Rotter, A New Scale for the Measurement of Interpersonal Trust, 35 J. of Personality 651, 653-55 (1967).
N.B. This article is a summary of a more extensive law review article: Susan Nauss Exon and Soomi Lee, Building Trust Online: The Realities of Telepresence for Mediators Engaged in Online Dispute Resolution, 49 Stetson Law Review 109 (2019).