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Commentary: To mediate on Zoom or in person?

By Jeff Trueman

BALTIMORE, MD — After many months of pandemic-related lockdown, we now know that Zoom works for mediation.

Simply stated, it’s efficient. When participants don’t have to travel to a physical location in order to mediate a satisfactory outcome to a litigated dispute, they save even more time and money than they did before the pandemic. Travel restrictions and preferences will likely wax and wane because of emerging COVID-19 variants.

If and when participants cannot mediate in person, lawyers and mediators can rely on Zoom to get the deal done.

But are in-person mediations really gone for good? I hope not. When environmental conditions permit, I encourage counsel to think strategically about whether to mediate in person or not.

First of all, do you want an opportunity to build a meaningful relationship with your client? Zoom’s breakout rooms are quick and easy to administer but keep you at a distance physically and emotionally. Your client may need your presence and guidance when considering his or her options.

Second, does your client want or need to experience something more tangible by interacting with the mediator or the other parties? People communicate on multiple levels, consciously and unconsciously. The physicality of a live, in-person mediation can intensify everyone’s attention to the process and the content of the discussions.

When it comes to Zoom, parties (and sometimes counsel and the mediator) often have disparate access to technology. Lagging video and audio can make it impossible to understand what is being conveyed. Even when the technology works as intended, Zoom cannot accommodate conversational cross-talk.

On the other hand, Zoom allows people to participate from a safe space such as their home and that may foster greater engagement — or distraction.

Some lawyers believe that the fear of trial can be leveraged more effectively in person. But the parties almost never meet face-to-face (by request of their lawyers). In private caucus rooms, with clients looking on, lawyers push back when pushed. When it’s easier for parties to move off of their bargaining positions without threats and posturing from the other side, they may be more likely to negotiate strategically, manage risk responsibly, and make good decisions.

This tends to be true whether the process unfolds on Zoom or in person.

Third, do you want to show the other parties that you and your client are genuinely committed to the process and that you respect the other participants (assuming you do)? Everyone knows how easy it is to default to Zoom. So when you offer to show up in person, you make the statement that you’re serious about engaging in a meaningful process.

On the other hand, Zoom makes it easier for decision-makers to participate, assuming that they are not driving, caring for children, or otherwise distracted.

Joint discussion

There is one additional aspect of mediation that I don’t think should be overlooked: the benefits of a joint discussion.

Note that I did not say “joint session.” I’m not looking for reasons to inflame anyone’s emotions and make matters worse between the parties. And there is no reason to assume or expect that joint sessions will occur at any time in the process — especially at the beginning. But in my experience, strategic and well-managed joint discussions between select participants (counsel or the parties without counsel) often produce good results.

Yes, Zoom can facilitate effective joint discussions. But joint discussions that happen between participants who are physically in the same room are a bit more effective, in my opinion.