In Person Or Online Mediation?

Initially viewed by many as simply a necessity during the pandemic, online mediation has revealed itself to be beneficial in its own right. It offers geographically distant parties an opportunity to more expeditiously convene a mediation; it enables parties to more productively spend their time during a mediator’s lengthy caucus with the other participants; in some cases, it can offer cost arbitrage by enabling parties to find capable mediators in parts of the country where mediation fees are meaningfully less.

On the other hand, there remains the question of the sterility of a process where the parties and mediator do not directly engage. One attorney shared with me during a recent mediation his strong belief that the interpersonal dynamic that can develop between a mediator and the parties often is the key to a successful resolution.

Additional perspective on the “in person” v. “online” debate comes from attorney/mediator Lucia Kanter St. Amour in this article, available on Mediate.com, in which she observes:

“For all the shortfalls of Zoom brings to the mediation and negotiation process (more difficult to build rapport, make eye contact, see and mirror body language, notice micro-expressions, and generally have ‘skin’ in the game the way people do in person), one of the pitfalls (‘Zoom fatigue’) has assisted my mediations by forcing us to break the process down into smaller pieces, incorporating meaningful breaks of hours or days, and thus avoiding the decision fatigue that is inevitable after a long day of mediation. This can, of course, lead to even more practical and durable agreements, and reduce morning-after regrets. Importantly, this benefits not just the parties but the mediator: deep listening, re-framing, thoughtful communication and ensuring fairness at all times is exhausting….The realities of online dispute resolution offer built-in ‘limitations’ that permit parties (and the mediator) to fend off decision fatigue and be better positioned for meaningful decisions that can truly allow them to find resolution and move forward.”

With in person mediation reemerging, my personal takeaway is that, for certain matters, online mediation remains a viable and valuable alternative.