The COVID-19 pandemic has brought many changes to our law practices and that includes how we conduct mediations.
Gone for the most part during the pandemic are the parties and their lawyers coming to the mediator’s office, parties going to their separate rooms, and the mediator shuffling back and forth hoping to reach a settlement.
This has been replaced often by the parties appearing by Zoom and being put into “breakout rooms.”
As the pandemic recedes, the question becomes: will Zoom mediation be the “new normal?”
Zoom: The Good and the Not-so-Good
To answer that, one needs to examine how Zoom mediation has worked. My own experience (with litigation other than divorce) reflects a mixed result.
There are obvious efficiencies involved (less travel time and cost to the client). Though the mediations are longer, they are sometimes less satisfactory to the litigants.
So, what portions of the pre-COVID-19 mediation format do we miss and why?
The first is the direct, in-person contact that the mediator has with the parties to the dispute (and with the lawyers as well). One of the most important aspects to the success of any mediation is the trust that develops between the mediator and the parties to the case. That is much more difficult to accomplish by Zoom.
The same can be said about the relationship between the lawyer and the mediator. Sometimes the mediator has had many dealings with a particular lawyer and that trust factor is already there. On the other hand, this may be one of the first times a lawyer and mediator have worked together. Building trust is more difficult to accomplish when it is by Zoom as opposed to being in the room.
Missing the Critical Moments
There are two particular points in the mediation where the in-person interaction between mediator and party (and their lawyer) are critical, and I think loses something in a Zoom setting.
The first is in the initial meeting with the mediator, the party, and the lawyer. This is often the longest meeting, extending sometimes to a half-hour or more. That is where the real trust referred to above is developed. Again, it is a more difficult task when this is by Zoom.
The other critical time in a mediation where the in-person relationship is essential comes at the end of mediation, when the mediator is trying to bring the dispute to resolution. At times this involves the mediator giving their opinion on a settlement proposal. Being across the table from someone cannot be replaced by a Zoom meeting at this critical juncture.
What is also missing in the Zoom experience is the lawyer and their client actually not being in the same physical location. The interaction between attorney and client is very important during the mediation. I think that communication suffers somewhat when on Zoom, as opposed to being in the same room.
Often, the most important conversation between attorney and client is when the mediator is
not in the room. In a significant number of mediations, there are times when the mediator and the attorney talk outside the presence of the client. Sometimes all of the attorneys and the mediator get together to talk about a particular issue, or there is a “hallway” discussion between the attorney and the mediator. These conversations, I can tell you, are sometimes a key to getting a case resolved, and happen far less frequently when we are using Zoom as opposed to all participants being in one office.
A final factor to consider is how the parties view a Zoom mediation, as opposed to being in the same room with the mediator and their lawyer. While there may be something to be said for the party to be comfortable in their own home, I think the party not only understands the mediation process better, but also feels better about its outcome when they are physically present with the mediator and the lawyer.
Part of a successful mediation are the parties walking away from the mediation feeling as if they participated in the mediation, understood the issues being discussed, and acknowledging that they need to compromise to reach a successful resolution of the case. I think that is less likely in the Zoom setting as opposed to being “in the room.”
Conclusion: What Gives the Best Chance for Success
So, what is the future of Zoom mediation in the post-pandemic world?
I am not suggesting that we go back to where we were 18 months ago, when the overwhelming majority of mediations were held in the office with all parties and lawyers present.
There may be occasions where it makes sense to have a mediation where some or all of the parties appear by Zoom or phone. It is really a case-by-case analysis.
I can only speak as one mediator who has one goal: trying to maximize the chances for success at mediation. I still believe that the best chance for a successful resolution occurs with all the parties and in the same location.
This article was originally published on the State Bar of Wisconsin’s
Dispute Resolution Blog. Visit the State Bar
sections or the
Dispute Resolution Section webpages to learn more about the benefits of section membership.