Factors Favoring an In-Person Mediation
In-person mediation and remote mediation both have their advantages and disadvantages. The choice between the two depends on the specific circumstances of the dispute.
In those situations where cost, schedules, and geography are not barriers to meeting in person, the following factors are reasons to choose to mediate in person rather than remotely:
High conflict disputes: When emotions are running high or there is a high-level of distrust, appearing in person for mediation can help the mediator lower the emotional stresses and engender greater trust. Being in person also brings body language and clearer facial expressions into the conversation which lowers the risk of miscommunication and improves the overall effectiveness of communication.
Complex disputes: When the negotiations involve detailed discussions about complicated or complex issues, an in-person mediation allows for more nuanced communication which leads to a better understanding of each party’s position.
Cultural differences: When there are significant cultural differences between the parties, an in-person mediation allows for a better understanding of each party’s cultural preferences and communication styles, in part because non-verbal cues like eye contact, facial expressions, and physical contact are more easily noticed during the conversation. An in-person mediation also affords an opportunity for a mediator to build rapport and respect with food and drink options that helps make the parties feel more comfortable in what may be a stressful situation.
In-person mediations also make it easier to overcome language barriers, if the parties come from different backgrounds. It is easier to communicate with and through an interpreter, for example, in-person where reliance on a microphone or speaker quality are removed.
Confidentiality concerns: Many articles have been written and laws passed stressing the importance of confidentiality in mediation and the challenges presented to protect this aspect of a remote mediation. Simply stated, during remote mediations, it is impossible to know whether someone else is in a room and off-camera or if a party is recording the mediation session. By contrast, during in-person mediations, the mediator exercises a greater level of control over the environment which better assures that all parties are complying with their confidentiality commitments and information is not inadvertently being leaked.
Need for physical documents: While screen sharing is convenient, asking a person to make a document larger so it can be read, or to scroll one direction or another, or to switch between documents on the screen can be cumbersome, time consuming, and distracting. During in-person mediations, the physical exchange of documents and examination of other evidence is fluid and can be accompanied by private discussions between parties and their counsel.
Empathy: In situations in which a party’s physical presence in a courtroom may impact how a jury evaluates the evidence, an in-person mediation provides an opportunity to more empathically weigh how certain evidence or a party may present in a courtroom.
While in-person mediation may be preferred and generally more effective in these situations, this is not to say that conflicts with these factors cannot be resolved via remote mediation. Ultimately, the choice between in-person and remote mediation will depend on the specific circumstances of the dispute, the needs and preferences of the parties involved, the skill of the mediator, the reliability of technology, and the willingness of the parties to meaningfully negotiate in whichever forum is agreed upon.
Felicia Harris Hoss
is an attorney-mediator, arbitrator, settlement lawyer, and early dispute resolution (EDR) neutral, with more than 25 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.
