Mediation Minute

Surveys Can Prove Anything, Even the Truth: A Review of Online Mediation

April 8, 2021

I conducted an informal survey of mediators who belong to the Executive Council of the ADR Section of the Florida Bar asking them two questions. What percentage of mediations are you conducting remotely, and as a percentage of effectiveness how would you rate online mediation vis-à-vis in-person session?

The answers were what I anticipated, and the data was uniform. The mediators said that 95% or more of their mediations were being conducted by Zoom or other platforms. As for effectiveness, the low score was 70 out of 100 ,and there were many who reported Zoom was just as effective. The average grade as a percentage of effectiveness compared to in-person was 90%. Stated differently, mediators are subjectively reporting little to no drop-off in perceived effectiveness when conducting virtual mediation.

More research needs to be done on participant satisfaction and actual settlement rates. Are clients as satisfied as mediators? Does the virtual process respect their needs? Are we seeing an increase or decrease in rate of impasse?

If there are more settlements is that because people cannot wait for a trial date that is months or years away? We might assume there is more economic pressure on claimants generally during economically challenging times, so that could be a driver of settlements. Some say there is a “COVID” discount that benefits insurance carriers as the closed courts disproportionally impact claimants.

Mediators ask, when the pandemic wanes, will courts largely back off the requirement of having in-person attendance, particularly given the cost/benefit of virtual sessions which are far less expensive and don’t involve travel?

My bet: we won’t put the genie back in the bottle. Mediators and lawyers report they are generally content using the virtual sessions. Maybe claimant’s lawyers a little less so than defense. But it is clearly less intimidating and more convenient for lay persons to appear from home or from some familiar environment. Additionally, out-of-state litigants find it much easier to attend remotely and at considerable savings.

From a health and safety standpoint, Zoom is hugely beneficial. Even before COVID, how many times did you get on a plane for a deposition or mediation not feeling well, but knowing you needed to tough it out for the client? Conversely, how many times did you feel uncomfortable when someone showed coughing and obviously sick?

You lose a few things going virtual. When the mediation is going badly, it is easier to try to dispel hard feelings and animosity when face to face. When mediating online, I cannot suggest we step outside for some fresh air to reduce tension. You lose a sense of “shared mission” which can be helpful. You lose some ability to demonstrate heartfelt empathy. Sometimes telling people you care matters. It’s harder to do that on a little screen.

Lest we forget, there are some who are very fearful of being in proximity to others while in an adversary proceeding or who have anthropophobia or agoraphobia. We frequently ignore this. It may be a small cohort who have mental or emotional problems, but emotional or psychological duress is more common than you think.

Suffering from a condition that causes stress is intolerable in the context of mediation. I am confident we have all represented or mediated with people who dislike in-person groups and negotiations.

There have also been instances of violence during mediation in Florida and elsewhere which we would all do well to remember. My fellow mediators working in family law are particularly sensitive to participant safety. Zoom-style mediation eliminates these rarely occurring but deeply troubling problems.

Courts may see this problem differently as they wrestle with conducting trials and hearings on a virtual platform. If there is some judicial dislike for virtual “court”, let’s hope that negative experience does not chill the judiciary’s tolerance for remote mediation.

Procedural and evidentiary concerns, institutional jury control, and managing remote witnesses are not problems faced in mediation. So, any adverse judicial experience with virtual courtrooms should not color tolerance for remote mediation. At the end of the day, attendance should not be driven by judicial fiat, but by the factors relevant to the marketplace as determined by the consumers of mediation services.

My bet is lawyers, clients, and mediators will stick with online platforms with some frequency after the pandemic is over because time, money, health, safety, and ease of scheduling are compelling considerations. If we do not perceive much, if any, qualitative drop-off in terms of the mediator’s ability to engage and client satisfaction with the virtual process is acceptable, then the new normal is here.