Remote or in-person mediation?

With the relative return to ‘normality’ and as face-to-face mediations gather pace, it is a moment to take stock of the benefits of remote and in-person mediation; each way of mediating offers its own advantages.

Online mediation

Online mediation has exceeded everyone’s expectations. In the past 18 months I have only had one case where the solicitors and I agreed that if they or I had been physically present with their clients then more progress would have been made on the day. But that dispute still settled, albeit some months later, along the lines established at the mediation.

Logistically, online mediations have much to recommend them. With clients in different countries, it places everyone on an even footing. Further, in emotionally fraught disputes or with frail or elderly clients the comfort of being in their own home (or at least the home territory of their lawyer’s office) is a real plus, enabling them to take effective breaks and helping them to make the difficult decisions that mediations often involve.

Learning from online

The pre-mediation Zoom meeting, introduced in online mediation, has now been adopted for in-person mediation too.

At the beginning of lockdown, when everyone was on a steep learning curve, such meetings with clients and lawyers ensured everyone was comfortable with the technology. However, it soon became clear that an advance ‘meet the mediator’ session did much to make clients comfortable generally.

So now an initial advance meeting via Zoom is a regular feature of all mediations.

In-person mediation

One of the pleasures of the return to in-person mediation has been rediscovering the ease and efficacy of personal interaction face-to-face and, in particular, the benefits of such conversations between principals.

From the mediator’s point of view, it seems easier to build rapport and pick-up non-verbal clues when physically present with the parties.  It is also more natural to linger longer in private rooms and broaden the conversation beyond the dispute. Those casual conversations sometimes lead to an unexpected opening for settlement.

I recently mediated a trust dispute in which each of the parties was present in a representative capacity; they didn’t know each other and their lack of familiarity and trust was hindering a constructive dialogue. Chatting generally in one room, it became clear to me that the parties had far more in common than they realised. The parties then met to share stories about their respective backgrounds and their memories of the deceased. That conversation was a pivotal point in establishing trust and a platform for negotiations to settlement.

Face-to-face conversations between principals can have far greater power than indirect messages. In one recent mediation, the impediment to settlement was the inability of one party to accept that the trust and confidence between her and the other party had broken down to such an extent that the termination of the relationship was inevitable. That acceptance, and hence settlement, was only made possible by a face-to-face, principal-to-principal meeting (with lawyers holding a watching brief) at which the strength of feeling was communicated directly.

So – remote or in-person mediation? Over the past two months, my mediations have been 50: 50. Clients and their lawyers clearly recognise the benefits of each, appreciate the flexibility they offer and will continue to use the process best suited to their dispute and circumstances.