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Well, this is an article I never thought I'd write.
Like most mediators, I thought that online mediation could never be quite as good as face-to-face mediation. Mediation, I thought, was all about the connection between the mediator and the parties, the bond of trust built up over the course of the mediation, and the mediator's ability to "read" a room, and all of that is only possible in person, and face-to-face. I thought.
I thought wrong. Not about the importance of the connection between the mediator and the parties, nor about the bond of trust, nor about the mediator needing to be able to "read" a room. No, I was wrong in thinking that only a face-to-face mediation can deliver those benefits. The experience of mediating online during the pandemic has taught me that an online mediation can be every bit as effective. In fact, the settlement rates I'm seeing when mediating online have convinced me that, whilst there will always be a place for face-to-face mediation, for most cases, most of the time, online mediation may be the better choice.
Why? Well, for starters, there's not much a face-to-face mediation can offer that isn't replicated online. Private confidential "rooms" online for the parties and their advisors to confer in, rooms for joint sessions, there's even an online flip chart! On top of all that, here's a few of the advantages of online mediation, things that work better than face to face mediation:
It's more convenient. Nobody needs to travel, nobody needs to go down the night before and stay in a hotel, and nobody needs to worry about the train home. No online mediation ever came to an early end because someone had to catch the last train.
It's cheaper. Our fees are reduced for a start. Then there's a saving in travel costs for the parties and the lawyers, a saving in the lawyers' chargeable time travelling to the venue, and no need to pay to hire a venue at all!
It's less intimidating. For some clients, the mediation venue - prestigious solicitors' offices, or august barristers' chambers, or maybe just anonymous meeting rooms - can be intimidating. It's noticeable that clients at a face to face mediation sometimes hardly say a word all day. But put them infront of the computer on which they talk to their grandchildren, or work colleagues, or friends, in the comfort of their own home, and they'll relax and chat away. Which really helps to establish that personal connection.
It's less confrontational. Often, the parties really, really don't want to meet the other side on the way into the mediaiton. But even with staggered starting times, there's no guaranteeing that they won't just happen to arrive at the front door at the same moment. Or won't meet looking for a coffee. Or on the way to the loo. But no one ever ran into their opponent on the way to the loo in an online mediation.
The mediator has more information to "read" a room. At a face-to-face mediation if, say, counsel is talking, it's natural that the mediator will be listenting to and focussing on counsel. Which means they may miss the reactions of others, like the client, to what's being said. Mediating online, with everyone on their own screen, the mediator gets to see everyone's reactions, all the time. When it comes to "reading" a room, for me as a mediator, that's absolute gold dust, and something that just can't be replicated in a face to face mediation.
The mediator gets a better view. Yes, really. I often get a far better view of people close up on a computer screen than I do when they're seated at the other end of a conference table, especially in today's world when we're all conscious about social distancing. Worse still mediation is considered a high risk activity in terms of catching coronavirus. When you think about it, there's not many circumstacnces in which you might spend eight to ten hours, indoors, in close face-to-face contact with people you've never met! So, that requires serious social distancing, and wearing masks may remain mandatory, or recommended, in mediation for a good while yet. And mediating people in masks really, really doesn't work. Trust me on this. I've tried it. And I'd take mediating on a computer any time.
Being at home is great. Sometimes, taking a moment whilst the mediator is away just to walk the dog, or tuck a child up in bed, can be just the break one needs to focus on what's really important.
It's completely safe. No vaccine gives 100% protection. Face-to-face mediation is a high risk activity in terms of coronavirus transmission. But no one ever got infected at an online mediation.
It's good for lawyers. The lawyers tell us that if they're in their own office or at home they can get some chargeable work done in the "down time" whilst the mediator is with the other party, or at least keep on top of their emails, which sounds like a win / win to us!
All of which means...
The settlement rate is as good or better. But don't take my word for it: here's a link to my mediation record, so you can see for yourself. The cases with an asterisk are the online ones.
So, yes, I was wrong about online mediation. True, there will still be cases where face-to-face works better. I'd say that if a mediation genuinely needs more than, say, six to eight people in any one room, then face-to-face may be preferable. Lots of small windows on Zoom don't work so well! Boundary disputes will almost always benefit from being on, or at least near the site, so that we can go and look if we need to. And there may be some workplace mediations that have to be in the, er, workplace. And then there are the cases where the clients may not have reliable internet access. But otherwise, online is cheaper and has an equiavlent or better success rate. And the clients? They tell us they love it, and far prefer it to the idea of a face-to-face mediation. What's not to like?
Whatever you're doing, however you are doing it, and wherever you are, stay safe.
Martin
