Deciding Whether to Mediate In Person
In person meetings require more effort, from having to be properly attired to physically transporting oneself to a shared location. If one of the goals of mediation is to reduce costs and increase efficiency, then why would parties choose to mediate in person if, as is true, online mediations work?
Imagine attending a concert from the comfort of your home versus being in the crowd. In both places, you’ll see the same choreographed routines and hear the same chords and lyrics. But the experiences are drastically different. At the live concert, you are immersed in the moment. You are fully and completely engaged. You don’t just watch the concert, you are a part it.
More than two years ago the pandemic caused the worldwide shutdown of just about everything, including in-person mediations, forcing us to substitute virtual human connections through online applications like Zoom for those previously experienced in-person.
Fast forward and today the consensus is that mediating in a Zoom-room is – and will continue to be – an effective and cost-efficient option for parties wanting to negotiate a resolution to conflicts. My office, like many others, will continue to offer remote mediations and arbitrations for the foreseeable future simply because parties want options, and because it works.
But, as organizations and courts transition back to in-person meetings, social events, and trials, conversations about whether to mediate in-person again are popping up. Once again, parties and their counsel feel they have choices – not just about whether to mediate, but how and where to mediate.
As parties and their counsel start to talk strategically again about where and how to mediate, it seems like a good time to review some of the differentiators between remote and in-person mediation experiences.
Confidentiality. Whether or not mediation is conducted in-person or remotely, confidentiality is always important. But in some cases parties are more concerned about confidentiality than in others. For example, in a trade secret dispute the importance of confidentiality will be viewed differently than in a condemnation matter where the subject is of a public concern.
On balance, because the mediator can control who physically enters a space during in-person mediations, confidentiality is easier to ensure during an in-person mediation.
Enhanced non-verbal communications. The 7-38-55 principal is a widely known rule of thumb about how communication happens. According to the rule, about 7% of communication between humans occurs through spoken words, 38% through tone of voice, and the rest – 55% – through body language.
While body language certainly includes facial expressions that are usually visible on-camera through Zoom, there are other cues such as body posture, fidgeting, and finger tapping that are not typically visible in remote mediations.
Given the significance of body language to the effectiveness of communication, in negotiations involving sensitive, personal, and/or life-changing issues, parties may deem an in-person mediation more suitable for the subject-matter and as a way to eliminate barriers to communication that distance brings.
Investment in the process. There are several currencies at play in the dispute resolution process, in addition to time, talent, and money. Just as the decision regarding venue for a lawsuit or arbitration can significantly affect decision-making, where to gather for an in-person mediation can also contribute to the mindset one or more of the parties brings to a mediation session, especially if travel is involved.
But even local mediations can increase one’s investment to the process. For example, the time and costs of commuting to a specific location necessarily adds to the personal investment the participants make to the mediation process. Whether it is traveling 45 minutes across town in rush-hour traffic and spending more than $4.00 on each gallon of gas, or needing to pay someone to chaperone children, having to physically relocate and be present in one location necessitates greater human energy and time than simply turning on the computer, flipping on a ring-light, and clicking the Zoom app in the comfort of one’s living room or home office.
Which leads us to the next consideration…
Commitment to the process. Once all of the parties have committed to being physically present at one location for a mediation, they have demonstrated a willingness to physically extract themselves from their normal routines and environments. By doing so, they have significantly reduced the chances that environmental distractions will interfere with conversations and the decision-making process. And, frankly, it is not as easy to quit, even if – at times during the mediation session – frustration levels are challenged. Simply put, it is much easier to turn off a computer to disengage from a stressful conversation, than it is to physically leave a room, get in a car, and drive back to one’s office or home.
Environmental control. During an in-person mediation, the lighting, temperature, ambiance, and noise levels for everyone are known, shared equally, and can be controlled. The ability to communicate – through both verbal and non-verbal cues – is not dependent upon the internet or the quality of a microphone, video or lighting sources. And everyone’s basic needs for food and drink are usually well-attended to as well.
It’s been said that environment affects how people interact with each other. Meeting in-person to discuss a legal conflict is disruptive and often feels uncomfortable to the parties. The disruption and discomfort, however, are illustrative of the kind of disruption and discomfort the parties will experience at trial – although on a lesser scale – if a settlement is not reached. As at trial, during mediation, the problem will consume the parties’ thoughts for several hours, possibly an entire day (or days). Physically removed from the hustle-and-bustle of a normal day, this kind of focus helps to clear the mind and concentrate attention in ways that are not possible when sitting in one’s office or living room staring at faces on a computer screen. In this way, such disruption and discomfort are useful to encourage a more robust discussion and analysis.
Finally, a word about health and safety. We still live in a world where social distancing is advised, among other safety precautions. If the parties wish to consider in person mediations, a conversation in advance between counsel and the mediator is appropriate to answer any questions concerning the suitability of the physical meeting space(s) and agree to other terms for the engagement.
Felicia Harris Hoss
is an attorney-mediator, arbitrator, and early dispute resolution (EDR) neutral, with more than 20 years of legal experience. Through the years, Felicia has helped parties resolve disputes both inside and outside of the courtroom in a wide range of industries involving a broad spectrum of claims. Felicia is available to assist parties and their counsel through online, hybrid, and in-person mediations, arbitrations, and EDR processes.
