Back in ancient times before the COVID-19 pandemic, like nearly everything else, mediation was done in-person. The parties would meet at the mediator’s office, an attorney’s office, in a room off to the side of the small-claims courtroom, or wherever. Everyone would gather in a conference room or at a table, the mediator would briefly explain the process, and then the mediation would begin. If it was a joint session, everyone would remain together in the same room for the duration of the mediation; otherwise, the parties would be sent to separate rooms for private caucus meetings with the mediator, who would shuttle back and forth gathering information and conveying offers. If the mediation went on for several hours, there would be breaks for lunch and, if it went on into the evening hours, dinner. And when it was over, an agreement would be hashed out, printed, and signed in person with an actual pen, or not, and everyone would go on their way, hoping their cars had not been ticketed, towed, or locked in the parking garage for the night.
Jan Steen, “Argument over a card game,” 1665, public domain via Wikimedia Commons
Mediations are still done that way, but it is the exception now rather than the rule. In recent years, technology—particularly in the form of remote conferencing programs such as Zoom and Microsoft Meetings—has revolutionized the way meetings are conducted. Many courts now conduct most hearings and even trials via Zoom, and the same is true of mediation. Zoom has become the default for conducting mediations; if you want to mediate in person, you may have to specially arrange it.
Both forms of mediation have their benefits and drawbacks, but which is better? I’ve been doing both in-person and Zoom mediations during the past few years, and can’t answer that question. The best answer may be: it depends on what you want or need the mediation to be.
One of the biggest benefits of in-person mediation is the opportunity to have face-to-face communication. You get to see the person on the other side of the table, hear their voice, read their body language, and get a sense of their emotional investment in the issues. Getting a real-time sense of a person’s frustration, fear, or openness can be invaluable, particularly when dealing with sensitive topics or trying to develop a sense of trust between the parties. And the emotional impact of being able to tell and hear a person’s story in person can be powerful.
On the other hand, remote mediations are vastly more efficient and affordable than in-person meetings. Each party can log in from a private place of their choosing—home, office, a quiet park—instead of traveling across town or to a different city to attend the mediation in person which takes time, costs money, and may involve aggravating traffic or difficulty finding or affording parking. And there’s no worry about catching COVID in a Zoom meeting, which is still a concern for many people.
Ultimately, the method chosen for mediation depends on the parties’ preferences and availability. If they would have to travel far or have a disability that makes travel difficult or expensive, or have health concerns that make them leery of being in a room in close contact with other people, they may prefer remote mediation. If they want personal interaction and an opportunity to tell their story face-to-face with the other party, then in-person mediation may be their preference. Some parties are simply not tech-savvy and wouldn’t be able to participate remotely. Some might feel anxious or afraid in the presence of opposing parties and their lawyers, especially if there is a history of hostility or abuse, and would insist on a virtual mediation. Others may feel that the mediation would be successful if they could just sit down together and work things out like civilized people.
As far as which method of mediation works best, there doesn’t seem to be much difference in outcomes. In my experience, both in-person and remote mediation have similar success rates. Whether the mediation is conducted in person or via Zoom doesn’t bear on the success or failure of most mediations; it's more about how the parties approach the mediation. Mediations using either method succeed most often when the parties are prepared and approach the mediation in good faith and with a goal of reaching an agreement, and fail most often when they are unprepared or unwilling to listen or work in good faith toward an agreement.
If you aren’t sure whether to mediate in person or remotely, ask a mediator. Most mediators will be happy to talk with prospective clients and help them decide which method is most appropriate. Ultimately, it’s your mediation, and you want it to work for you.
To schedule a mediation in Washington or Hawai'i, contact Jeff Smoot at jeffsmootlaw@gmail.com or (206) 420-2466.
Copyright © 2023 by Jeffrey L. Smoot. All rights reserved.
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