The challenges and benefits of in-person and remote mediation

By Amanda Bucklow

Amanda Bucklow has been using Zoom to conduct mediation for years. She considers the advantages and drawbacks, the impact of the coronavirus (COVID-19) pandemic, and tips on how to make the most of remote mediation.

Mediation succeeds in disputes where previous attempts have failed because, when you bring together the right people at the right time, the environment for decision-making is positively transformed. The parties and their professional advisors, including those with authority to make or influence a decision, meet in the same place at the same time, and the ‘correspondence’ between the parties is accelerated. That immediacy of information exchange, the opportunity to see reactions (and explore the reasoning or motivation behind them), and the without-prejudice nature of communication (and option generation), all create a new dynamic better suited to decision-making. Add to that the independence and skills of the mediator, and you have an effective environment for negotiating an agreement.

There is at least one more ingredient: “good faith”. We can often take good faith for granted until it is not present. The mediation process allows for good faith to emerge, and it is surprising how often it does so against the odds.

Both remote and in-person mediation can achieve equally good outcomes. There are aspects of remote mediation which bring meaningful benefits to the parties and the mediator compared with in-person mediation. Even so, remote mediation has been an infrequent choice for two reasons:

• the familiarity and comfort of parties, their advisors and mediators with video conferencing technology, and

• the accepted wisdom that meeting in person has a unique quality which increases the likelihood of settlement.

The last point remains valid because we are social beings and rely on many cues to determine our level of trust in others. Some of those cues are subconscious, and some are only available in person.

How lockdown has impacted mediation

What the pandemic and physical distancing have achieved is a mass learning event in how to use online platforms to hold effective meetings. Now, we have more choices because of broader acceptance and confidence in using online meeting platforms, across all age groups. The providers of conferencing platforms have been remarkably responsive to implementing features, and some are particularly useful for mediation.

I miss my “accidental meetings” with people on the way to or from the coffee machine or bathroom, which can often help break deadlock.