Good Lawyers cross bridges…Good mediators build them
by Michael Sinclair and David Pihl
In the context of increasing complaints about the cost of legal services online mediation is one tool that is often under-utilized.
Many people continue to see video-conference mediation as inferior or a waste of time. This is a mistake. It represents a good opportunity for parties to resolve disputes faster for less in legal fees.
Online mediation took hold during the COVID-19 pandemic where it was not possible for a mediator to attend a mediation with parties and counsel in-person. As a consequence, mediations began to be run via web-conference.
Initially there was great reticence from many lawyers that were offered this option. It was not uncommon to come across beliefs that the in-person aspect was a critical component of the circumstances of mediation that are so successful in bringing parties to resolution.
This reticence can be understood. Very often if a chance at mediation is squandered parties are exposed to increased delay in resolution and potential more court process, all of which increases legal fees and often leave the parties worse off. If running a mediation via web-conference resulted in the file not settling, the parties may be left running a trial.
At the end of the pandemic, many counsel expected mediation to return to an all in-person context, but that is not what has happened. This has caused many of us to question the actual differences between in-person and video-conference mediation.
In fact, benefits were seen to arise from video-conference mediation over in-person mediation. For example, when there is significant tension between the parties it may be better to run the mediation by video-conference. Having the parties in the same room, or even the same building may unnecessarily stress the parties and make coming to a resolution more difficult.
Another example is where the parties are separated by distance, or where they are located in a remote community where there would be significant cost and schedule limitations to fly in a mediator.
While face-to-face mediation is still in many ways the “gold standard” of mediation, the effectiveness of video-conference mediation has been so successful that some mediators only offer online mediation. Web-conference mediation is found by many to be almost if not as effective as in-person mediation.
Additionally, virtual mediation allows counsel to have access to their assistants, their file and any junior lawyers that may be working on the file, as contrasted with in-person mediation if not held at that counsel’s office.
Additionally, in the context of a search for a mediator on short notice, web-conference mediation substantially increases the number of potential mediators.
Indeed, studies have shown that participants more often prefer online mediation to in-person and that procedural fairness, distributive justice and access to justice were better on the online process.[1]
This is not to say that in some circumstances in-person mediation won’t be preferred or ideal. The assessment of whether in-person or video-conference mediation ought be made without the assumption that in-person mediation is inherently superior.
Tips for web-conference mediation
From my experience, from time-to-time counsel for one of the parties has asked for my assistance in speaking with counsel alone or with both counsel without the presence of clients. I usually create an additional breakout room in the virtual mediation to accommodate counsel should that request arise.
In circumstances where the counsel and client are in the same virtual office, the client will be asked to leave the room so counsel can be ushered into the extra breakout room quite easily.
Occasionally (though rare as it may be) counsel requests that I speak with the client separately and apart from counsel. If the client is attending via a separate feed, being in a different location than counsel, this is easy to accomplish with the additional virtual breakout room.
As an added note, where counsel and client are in the same office setting for virtual mediation, it is important that the camera setting is adjusted so that the client can be observed as easily as possible. This is important as the body language of the parties in a mediation is very important. One of the criticisms of virtual mediation is the absence of the ability to observe body language. Steps should be taken to deal with that criticism.
Length of the mediation has been a concern, where one party is sensitive to the cost of additional time scheduled for mediation. A virtual mediation can accommodate additional time more efficiently than in person mediation either continuing the time or being able to re-schedule quickly without the necessity of coordination for in person accommodations.
As with any negotiation process being able to “go with the flow” is often easier to process virtually than if it were in person.
It should also be noted that a hybrid in-person/virtual mediation is often utilized where one or more of the attendees are not able to attend in person but there is urgency to the matter to be resolved if possible, at an early date.
Conclusion
In the end, web-conference mediation is a tool which parties can use. In many cases it will be appropriate, but not all. Going in well-prepared and ready to address the unique challenges that this mode of mediation increases the chances of success.
[1] Equal Employment Opportunity Commission studies dated February 18, 2022 by E. Patrick MacDermott, Ph.D., and Dr. Ruth Obar, Ph.D. The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional.