Surprising Lessons from the Switch to Online Mediation

Mediation is simply a tool to resolve disputes.  For years, we could only visualize that tool as requiring participants to all converge at one location, face-to-face with a mediator, before they could engage in meaningful efforts to settle disputes. 

Covid forced a re-invention of that process. At first, I was skeptical that online mediation could work effectively.  I never would have predicted it would permanently change the world of mediation as it has.  Here are three lessons I have learned.

Geography no longer matters.

The biggest change from going online is the elimination of geographic barriers.  The in-person approach required travel by participants to a common location.  This necessarily caused problems if an adjuster or other decisionmaker was located on another coast or a day’s worth of travel away.  As a result, decisionmakers did not come, made themselves “available” by phone or hired a stand-in who knew nothing about the case but showed up simply to satisfy court requirements.  The process suffered.

Zoom mediation eliminated geography as an issue.  Bandwidth became the great equalizer, with the adjuster in Oregon just as connected and involved as the plaintiff sitting locally in his or her lawyer’s office.

The benefits are significant.  In one case this year, I was in mid-coast Maine, plaintiff’s counsel was in southern Maine, defense counsel was in South Carolina, the plaintiff was in Texas, the adjuster was in California and the defense representative was in another part of Texas.  The time and expense of bringing everyone to one location would have been substantial.  We resolved the case without any of that.

In another recent case, the minor plaintiff attended from the State of Washington, his counsel was in New Hampshire, defense counsel was in Vermont and the adjuster was in Texas.  I conducted the mediation online from Maine. Plaintiff was graduating the day after the mediation and was able to both mediate his case and graduate in successive days, without travel.

Mediation is now more efficient.

The shift online has improved efficiency.  In part, this is due to the elimination of travel. Participants no longer need to fly across the country and back to attend mediations.  Counsel can work from home or their offices, interchangeably.

There are also efficiencies tied to the use of “down time.”  Counsel are able to attend to other matters when the mediator is visiting other breakout rooms. Adjusters can work on other claims.  Parties participating from home can attend to family, pets and other demands for their time.

Relationship building works online.

Effective mediators build relationships and trust with the parties during a mediation.  On the surface, this might seem to be an easier task sitting across a table than through a computer screen. 

Online mediation does require extra effort by mediators, but it provides new opportunities for connection.  The physical location of a participant, artwork hanging on a wall, pets and children who enter the mediation inadvertently all become subjects for discussion and connection.  Sometimes, just the security of mediating from home instead of in a lawyer’s office, provides parties with a sense of comfort and confidence, allowing for more productive discussions.   

In many respects, online mediation is an improvement.  While many mediators will offer a choice of in- person or online mediations in the years ahead, I predict that going forward, most counsel and parties will opt to mediate online.