Mediations: To Zoom or not to Zoom, that is the Question…

The Pandemic brought many challenges, but it also presented opportunities. One of those opportunities was participating in litigation mediations via Zoom. At first, there was a general reluctance to utilize online services such as Zoom for facilitated mediation. However, without Zoom and other similar platforms, we would still be digging out from the backlog. Now, two years in, here is an evaluation of the performance of Zoom mediations versus mediations by live attendance.

From two years of experience with Zoom mediations, there are both benefits and detriments to Zoom conferences. The benefits of attending a Zoom mediation are many: First and foremost, there is a convenience factor. It is very easy to attend a Zoom mediation by sitting at your desk either at home or in your office, or frankly, just about anywhere. Second, it is also relatively easy to navigate a Zoom conference. Most people can log onto Zoom and most mediators are knowledgeable enough with the Zoom software to be able to create separate rooms and move effortlessly back-and-forth. Third, there is a considerable cost savings in conducting a mediation via Zoom. The mediator does not need to travel, the parties do not need to travel, and that saves both time and expenses. Fourth, the Zoom mediation can be conducted at any location having internet access, at any time, and the location of the parties is frankly in material. Fifth, the parties can pick a mediator at any geographic location which gives the parties an opportunity to select a mediator who has a particular knowledge or skill set related to the case regardless of the mediator’s physical location. Fifth, in a Zoom mediation, there are no expectations of a joint session. Joint sessions usually require the mediator to take hours just to undo the tension and aggravation that builds up during the joint sessions. Sixth, conducting a mediation via Zoom sets up a translucent barrier in that people are likely to do and say things during a Zoom conference that they may not say face-to-face. This gives the mediator an opportunity to truly ask difficult questions as a Devil’s advocate without that barrier of interpersonal contact. Seventh, the flexibility of mediations by Zoom also allow parties who typically do not attend in person to participate in the process. A great example of that is insurance adjusters. Finally, the settlement process itself is also easier to manage. Generally speaking, when the mediation is complete, the mediation settlement agreement can be drafted via email with each party hitting “reply-all” to everyone indicating consent to the arrangement.

By contrast, there are disadvantages to conducting mediations via Zoom. The first and foremost roadblock is technology. It can definitely be an impediment if the participant’s technology does not work during the Zoom conference. That could be due to Internet speed, location, and any number of considerations. Other obvious disadvantages are distractions. If one of the parties to the mediation is participating via Zoom at home, you may have laughing and screaming children, barking dogs, loud stereos of neighbors, doorbells, power outages, and the like.

There are also competing benefits to holding live Zoom mediations. First, when parties attend a live mediation, there is a significant physical effort on their behalf just to get to the mediation. There is also an investment of both time and money to attend the mediation in person. This represents a commitment on behalf of the parties to participate in the process and to work harder towards resolution. Second, when you participate in a mediation live, you can feel the tension in the room. That tension works to facilitate settlement. That tension is not felt during a Zoom conference. Third, the process of attending the mediation live appears more formal. That formality contributes to a settlement environment. Fourth, in live mediations, there is the benefit of interpersonal contact. That interpersonal contact can be important because you can sometimes better judge the nuances of the parties’ reactions. You can also make eye contact without any barriers of technology. It appears that everyone is engaged. Fifth, the live mediation also gives you the opportunity as a mediator to get all the principals out in the hallway to have a private conversation, or likewise get all the attorneys out in the hallway. While that can be done during a Zoom mediation, it is more cumbersome. The flipside is that when you get lawyers in the room at the end of the mediation, it can sometimes take hours to laboriously negotiate and draft a settlement agreement.

In all, as a mediator, I personally have found that mediations via Zoom are very successful. From various publications, zoom mediations versus live mediations result in a statistical dead heat in terms of the percentage which settle. From my humble and personal opinion, the benefits of a Zoom mediation, with the cost, convenience, selection of the mediator with a particular skill set regardless of location, lack of travel and the ease of utilizing the software are here to stay and far outweigh all of the other considerations for a live mediation except in the most difficult of circumstances.

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