Mediating Conflicts at Work: Post-COVID Shifts in Resolving Employment Disputes

Issue November/December 2023 November 2023 By Audrey J. Lee
Dispute Resolution Section Review
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Audrey J. Lee

When I share with people that I am a “workplace mediator,” that description is often met with surprise. “Really? What do you do?” is a common response. Even among lawyers or HR professionals, I sometimes experience similar responses that reflect how this type of mediation is still emerging as a possible method to address challenging interpersonal dynamics and relationships in the workplace.

Pre-COVID, my mediation practice was geared more toward employment discrimination cases in which parties were usually represented by counsel and a formal complaint had already been filed. When I did have a workplace case — a case referred for mediation before the filing of a formal internal or external complaint — the case was typically a “one and done” case: we met for one session and the case resolved, one way or another. 

During COVID and in the time since the lockdown period, workplace cases — especially those involving allegations of bias — have evolved, both in how they present initially and how we, as mediators, can adapt to provide space and support for the participating parties. Here are three shifts I have observed:

  1. A strong(er) interest in connecting and being understood, leading to a shift in goals and possible outcomes for workplace cases
  2. An extended duration of cases to support the development of a new working relationship
  3. The emergence of online mediation as a productive option
Below, I share my observations from mediating bias-related workplace cases and how my approach has shifted to meet the evolving nature of these cases.

1.  A Strong(Er) Interest In Connecting And Being Understood, Leading To A Shift In Goals And Possible Outcomes For Workplace Cases 

One observation in the early COVID days was a strong need amongst mediation parties to connect and be understood, both by me as mediator and by the other party. I remember many online mediations where it was obvious, in the first moments, that no one was truly ready or able to be fully present, let alone commence what was sure to be a challenging conversation. In these moments, I would sometimes draw upon my experience working with Essential Partners, a nonprofit focused on fostering dialogue and healthy relationships between groups that hold different identities, values and perspectives. From Essential Partners, I learned the power of a “connecting question” to open a conversation. For example, I would pose the following question to my parties: “What are you leaving behind to join this conversation?” This would be an open-ended invitation for each party to share, if they would like, what might be influencing how they show up and participate in the mediation. This type of initial exchange would often lead to small shifts in body language — more eye contact, hints of a smile, more attentive listening. Even if the conversation was challenging in content, a basic human need for connection was met in some way. 

I have also observed a shift in party goals and possible outcomes in these mediations. Whereas pre-pandemic workplace case goals included deeper understanding, charting a path forward in the working relationship or even negotiating the road to separation, more recent cases often center around an initial vital goal of creating a space, mostly virtual, that supports vulnerability and openness to learning the other person’s experience. One tangible shift in my own practice has been embracing another takeaway from my collaboration with Essential Partners about setting up a productive dialogue. 

I have seen the power and positive impact of a more dialogue-centered approach to mediation. In my first group session with both parties, I now typically strive to facilitate dialogue between the parties based on a handful of discussion questions, provided in advance as “prep” questions to explore in the mediation session. For example, an impactful set of questions has been, “What would you like to learn?” and “What is something important to you that you would like the other person to know?” Perhaps as powerful, or even more so, has been a mental shift I’ve noticed in my own approach to these sessions, guided more by dialogue than what might be described as a more legally grounded “traditional” mediation frame.  

2. An Extended Duration Of Cases To Support The Development Of A New Working Relationship

Another observation from pandemic workplaces cases is related to the increasing duration and number of sessions per case. Previously, my practice would be to schedule pre-mediation “prep” conversations with each party and to book one in-person, four-hour session. There rarely was a need for a follow-up session. 

Beginning in the pandemic — due to fluctuating work schedules, health demands and home-schooling for kids — we faced a collective inability to block off a half day for a mediation session. As a result, the sessions became shorter, giving rise to two 1.5- or two-hour sessions, approximating the original four-hour typical session. What gave rise from these shorter sessions was the need to provide some level of ongoing support to a newly developing workplace relationship, previously fractured or broken, and now on the road to repair. The rhythm of these cases might be more akin to the typical pattern of family cases or even ombuds work with visitors, both in terms of timing (i.e., frequency and duration of sessions) and in the mediator role of trying to support each party and both parties together, during and in between sessions. While I was initially surprised to have two to three sessions as a new normal, I have also had a handful of cases in the past few years that have spanned several months to a year as the parties worked together to repair the past harms they experienced in service of doing the work they love in collaboration with one another.

Presently, in my initial conversations with an organizational contact and with parties, my process overview includes the expectation that there will be “a few” mediation sessions, with the option of brief debrief/prep conversations in between sessions. I typically share that on average, I would expect two sessions and that we might pencil in a third “check-in” session — framing this as a way to normalize that it takes time, effort and experimentation to shift from a distrustful, challenging working relationship to one that is functional at minimum, and collaborative and (more) trusting at best. 

3. The Emergence Of Online Mediation As A Productive Option 

 Before the pandemic, if asked if it would be possible to convene a workplace mediation (especially involving issues of bias), I would have given the same answer as to a question about virtual implicit bias training — “No, I would not recommend it!” However, the pandemic forced us into a virtual environment and conducting mediations also became virtual by default if they were to continue. While I confess I was skeptical of using an online platform like Zoom for any type of meeting, let alone mediating a case involving perceptions of bias, I have now come around full circle to embracing Zoom as a helpful means with which to connect more readily when scheduling or distance might get in the way. 

Anecdotally, from comparing my experience to that of other mediators, it seems that many mediators have had a similar experience convening online mediations. That is to say, while there is not an exact substitute for an in-person experience, an online mediation can result in similar levels of satisfaction by parties and outcomes (both in terms of settlements and terms included in settlement agreements). In my own experience, I have been with parties moved to tears in Zoom mediations and also felt my own emotions triggered in ways similar to an in-person experience, along with a range of outcomes comparable to my experience mediating in person.

Mediators’ anecdotal reports about party satisfaction and comfort with online mediation can be further substantiated by the findings of a 2022 Equal Employment Opportunity Commission (EEOC) study on the experience and efficacy of online dispute resolution (ODR), namely, Zoom mediations, as compared to in-person mediations.1 The EEOC study, comparing in-person mediation participant experiences in 2000 and virtual mediation participant experiences in 2021, found two important findings relevant to this discussion: 

(1) A higher percentage of parties (both charging parties and employers) were satisfied with ODR results as compared to in-person mediation results;2 

(2) Approximately 70% of mediation participants prefer ODR to in-person mediation, even when in-person mediation is offered by the EEOC.  

As a result of my experiences to date, and further supported by the EEOC’s research, I am comfortable sharing with parties that Zoom is a productive meeting option that should be considered in our work together.    


As mediators, we are trained to be flexible, to adapt to the circumstances, and to meet parties where they are. Since spring 2020, our worlds have changed and each of us has been impacted in different, often invisible, ways. I am reminded of one challenging workplace case where I learned that one party had lost a parent, separated from a loved one and was forced to move to alternate housing — all life-changing events we would dread and things not immediately apparent upon first meeting or easily shareable. And these invisible individual experiences necessarily impact how we show up at work, how we engage (or avoid) conflict, and how we participate in mediation. As we’ve emerged from COVID into changed workplaces and communities, we as mediators must also respond and make shifts in our own practices to meet parties where they are to co-create a constructive experience together.

Audrey J. Lee is a senior mediator at Boston Law Collaborative LLC, a lecturer on law at Harvard Law School in mediation and diversity and dispute resolution, and faculty for the Harvard Mediation Intensive. She can be reached at

1. “The Equal Employment Opportunity Commission Mediation Participants Experience in Online Mediation And Comparison to In-Person Mediation” (Feb. 18, 2022), available at  

2. In comparing the mean rating differences between the two time periods, the researchers found a statistically significant improvement from an average of 3.52 (in 2000 for in-person mediations) to 3.87 (in 2021 for online mediations). More specifically, in 2021, 60% of charging parties and 72% of employers reported satisfaction with their online mediation results as compared to 55% of charging parties and 63% of employers who reported satisfaction with their in-person mediation results in 2000. See Id. at pages 13-14.