Mediation: Whether you hold a conference in person or online can affect cost, convenience, time – and a whole lot more

By Brandy Carestia
The pandemic brought the necessity of online mediation to the forefront of nearly every attorney’s practice. Video-conferencing platforms like Zoom have enabled cases to continue through lockdowns and their use has now become the norm. Despite technology lubricating the wheels of justice to keep them turning through the sludge of COVID-19, many of us prefer in-person mediation. 
After all, the benefits of in-person mediation are well-known and have a proven track record. Building the rapport and trust that comes from a solid handshake and conveying understanding, empathy, and sincerity by looking someone in the eye can be more difficult online and is certainly helpful in allowing everyone involved to work toward the resolution of a dispute. Recognizing all the nonverbal cues that make up such a large piece of what is actually communicated is more limited when viewing just the speaker’s face through a web camera and listening for changes in tone through a computer speaker, headphones, or ear buds. For attorneys, assessing the other side’s “Exhibit A” (or giving opposing counsel or a claims adjuster the opportunity to do so) is also more effective in person.
Frankly, when parties are required to come together in the same physical place at the same time to address the problem that everyone has, there is a formality to the occasion that reinforces the idea that today is the day to get this done. Everyone’s focus is on the same problem. Now is the time. 
The last many months have proven, however, that a good mediator can succeed in all that is required to assist the parties in getting cases settled despite whatever obstacles video conferencing might present. What may come as a surprise to some is that online mediation exerts its own unique impetus in encouraging cases to settle.
First of all, there are the obvious convenience and cost-saving benefits of eliminating the need to travel. Travel expenses, gasoline, hourly fees, and the opportunity cost of being away from other business endeavors even longer are all spared when travel is eliminated.  Saving travel costs may also leave more resources available for resolution. At times, larger in-person mediation cases have required clients, attorneys, and representatives to set aside a full week to travel to and conduct an in-person mediation. Even local in-person mediations could take a sizable portion of a day to drive, fight traffic, find the office location, and park the car. Especially in this climate of flight delays or cancellations and inclement driving conditions, attendance by all parties is more assured without travel being involved. Online mediation conferences also offer greater accessibility to mediation by allowing participants to join the mediation from any quiet, secure environment with a good internet connection. 
In-person conferences, however, allow the mediator to ensure that the process remains confidential, ensure that all who have an interest in the resolution are present, and ensure that no others are unknowingly present at one of the locations. Because the mediator does not have complete control over the physical environment of each party during online conferences, the importance of confidentiality should be addressed prior to the mediation and commitments that the rules will be followed should be obtained from each participant. While the mediator may have less control over each participant’s environment during an online conference, the mediator gains more control over other aspects of the process since the mediator has the ability to mute participants or immediately send them to another “room”, and has control over what is shared on the screen.
Online conferences continue to provide the opportunity for attorneys and their clients to consult and brainstorm between caucus sessions in their own breakout rooms, just as is done during in-person conferences. However, in this setting, all participants have the opportunity to engage in other activities when the mediator is with another party. For example, clients are able to tend to other responsibilities at home and attorneys have convenient access to all their files and office staff. Yet, this ability to multi-task may result in participants devoting less focus to resolving the dispute than they would during an in-person conference. In this regard, the mediator can implement ground rules for keeping parties focused and should also be prepared to intervene when needed if the parties are not fully engaged.
Not only is productivity increased but the convenience that comes with mediating online allows for greater flexibility in scheduling, as well. For instance, an online mediation conference could be scheduled on an afternoon when one of the parties has another commitment that morning; whereas, scheduling mediation that day might not be feasible at all if that party needed time in the morning to travel to the mediation. 
While you may have considered these side advantages of online conferences, you may not have considered, however, the ways in which holding a mediation conference online can actually provide an environment more conducive to settlement than in-person conferences in some cases. In certain types of cases like family, employment, and wrongful death, or any highly emotional case, the parties may well be far more likely to compromise when they are not required to be at the same location.
While the very existence of conflict can be stressful, when people in conflict are in the same room, stress levels tend to be even greater. Sometimes even inadvertent contact with another party can cause emotional flare-ups that might cloud one’s ability to make logical decisions. Keeping stress levels as low as possible allows all parties to maintain focus on the effort to find a reasonable resolution.
Keep in mind that even when a mediator refrains from bringing everyone together during an in-person mediation in a contentious case, each party still knows the other is in the building and stress levels and emotions may rise with the worry of running into one another on a break or while entering or leaving the building, or with the trepidation of crossing paths enroute to the restroom or when stepping outside for a breath of fresh air. Holding a mediation conference online can eliminate the possibility of even catching a glimpse of the other party entirely. The physical separation from potentially emotionally triggering individuals and the comfort a home environment provides can improve the emotional climate in mediation and keep everyone’s focus on getting the case resolved. Consequently, less stressful environments enable participants to think more clearly, be more reasonable, more successfully regulate emotions, and make better decisions.
Removing the travel component also results in less stress in many cases. In a state like Montana, where parties or their attorneys frequently reside in different locales, white knuckle driving for miles in the middle of a snow storm or the shrill cry of the baby in the seat behind you on the plane are not conducive to the collaborative mindset the mediator hopes to foster when the conference begins. Conflicts are already distressing situations. The less anxiety a participant experiences of any kind, the more conducive that participant is to compromise. After dealing with whatever travel frustrations they might encounter, people can be understandably upset or frazzled when they arrive, requiring more time and effort to bring the parties back to the mindset that will lead to resolution. Mediators and the parties instead can benefit from individuals starting off more relaxed, at ease, comfortable, and focused at the outset. More importantly, nothing creates a more relaxed, secure, and open emotional state than being in one’s own home or office. An increased comfort level leads to greater honesty in the exchange of information and, ultimately, greater willingness to reach a compromise that will ultimately work for everyone.
And yet, sometimes the parties are best served by being physically present in one place at the same time, looking each other and the mediator in the eye, and absorbing all the nonverbal cues. Sometimes the benefits of an online conference provide a softer path to a more advantageous settlement. The bottom line is that the benefits of an in-person mediation conference outweigh the benefits of an online mediation conference in some cases and the benefits of an online mediation conference outweigh the benefits of an in-person mediation conference in others. A good mediator should be able to skillfully employ either method to help the parties resolve the dispute in the most efficient and beneficial way for all involved.
Brandy Carestia specializes in the mediation and arbitration of a broad range of civil and commercial disputes. You can reach her at bcarestia@paxdrs.com