Having recently done my first in-person mediations in more than two years, I’ve been thinking again about how much benefit there really is over mediating online.
This was prompted by a recent mediation where the parties and their lawyers had travelled from across Canada and the United States to meet in person for a full day mediation in Toronto. At the end of the day the parties had not settled – and were still very far apart. The participants were anxiously checking their flights and travel time to the airport.
“I really thought we would get a lot more out of doing this in person,” one of the lawyers commented to me just before they left. Not that he was surprised by how things went; everyone knew the parties were far apart going into the mediation. And they did make some progress toward a settlement. But they could have accomplished the same by meeting virtually.
Given the size of this dispute, the travel costs weren’t a big deal. Still, neither side would have been happy about throwing those costs away.
Contrast this with another recent mediation that reminded me of one of the benefits of mediating online. Once again, some of the participants were outside Canada. As the mediation progressed, it became clear that one side had information critical to their valuation of the matter that the other side did not have. For various reasons, including concerns about confidentiality, they hadn’t shared the information before the mediation. After some discussion, they agreed to share it solely for mediation and settlement purposes, but the other side needed time to review and digest it. They quickly agreed to adjourn the mediation and resume after that had been done. It would have been more difficult to do that if the parties had to travel for the mediation. The extra cost to adjourn and come back later might have discouraged both sides from taking a step that could lead to a settlement later.
People often say they want to meet in person “so I can sit across from them and look them in the eye.”
But, usually in the work I do, very little time is spent in joint session. The parties quickly move to separate caucus rooms and generally stay there for the rest of the mediation. Sometimes, the parties, or their lawyers, prefer to skip the joint session altogether. In those situations, it doesn’t matter whether they’re in a room down the hall or a ZOOM breakout room.
My mediation work is all commercial disputes (mainly technology and intellectual property) where the physical in-person element may be less important than other areas.
The dynamic may be very different in other kinds of mediation. Some mediation models rely more on joint sessions. I think those mediations benefit much more from meeting in person rather than online. Body language, eye-to-eye contact and tone are much more significant when the parties are speaking directly to each other, rather than through the mediator.
And there are certainly situations where the dynamics of an in-person meeting do lead to settlement.
Bringing people together – and keeping them there under a hard deadline – is often a successful mediation strategy. And it’s always more dramatic to pack up and storm out of a physical meeting room than to hit the “Leave” button on a ZOOM call.
On the whole, though, I’ve found that most of the mediation techniques I’ve seen in person work just as well online.
Even before COVID shut down in-person mediation in 2020, online mediation was gaining traction in many places and for many types of disputes.
For example, a mediation blog in the UK commented in 2017 on the rising popularity of online mediation, especially for smaller value disputes where the cost and accessibility of mediation are much larger factors.
In British Columbia, the Family Resolution Centre has provided online tools, including free mediation, to help families resolve separation, support and parenting disputes for the past several years. And Mediate BC been advocating and setting guidelines for technology-assisted distance family mediation for more than a decade.
Quebec has the Platform to Aid in the Resolution of Litigation electronically (PARLe), originally developed by the Cyberjustice Laboratory for a pilot project with the Consumer protection Agency in Quebec and since expanded to resolve a wide range of consumer disputes.
In Ontario, the Condominium Authority Tribunal, which is the province’s first completely online tribunal offering both mediation and adjudication of condominium disputes.
In 2019, Kari Boyle wrote an insightful Slaw column on the use of technology to facilitate both online and in-person mediation, commenting on an article entitled “Mind the Gap: Bringing Technology to the Mediation Table” that she found both helpful and provocative. I recently went back and took another look at that article and found it just as timely now as it was then. If anything, the authors’ comments on how we need to embrace change as mediators (and mediation advocates) are more relevant than ever!
More online tribunals and mediation services are being launched and expanded in various jurisdictions. They’re continuing to evolve to provide better access to dispute resolution to more people. Unfortunately, some jurisdictions have also shown a tendency to revert to pre-COVID practices which default to in-person proceedings unless parties agree otherwise.
COVID forced us to overcome some of our resistance to change in mediation and to adopt new best practices to take advantage of the benefits of technology and the ability to mediate remotely. Now we need to keep building on that experience to make mediation even more flexible and effective.
It seems that musings about the future of online mediation are becoming a regular fall feature for this column. For more thoughts in this topic, see my October 2021 column Are Hybrid in-Person and Virtual ADR Proceedings the New Normal? and my October 2020 column Online Dispute Resolution – Making a Virtue of Necessity