To Zoom or Not to Zoom: A Question

I received this question in connection with a recent mediation and I thought it useful to illuminate some important facts about mediation.

“What are your thoughts on Zoom versus in-person?  I’m primarily a transactional attorney so I’ve only participated in a handful of mediations, however, my hunch is that an in-person may be more effective in forcing a settlement than Zoom…”

Mediation is an occasional event for many lawyers whose practices do not regularly involve litigation. When transactional lawyers deal with controversy, mediation is not necessarily the “go to” way to resolve them. When their negotiations do not yield to rational arguments, many lawyers  are confronted with an empty tool box. Conflicts are then often referred to litigators for resolution based on what I would argue is a false assumption; that the courtroom is the best place to resolve a negotiation that has come to a stalemate.

This “false assumption” is based on a variety of considerations, chief among which is the bias held by many attorneys that strong emotions generated by a stalled negotiation pose a threat to reaching a negotiated settlement.  These negotiators/lawyers have difficulty imagining a successful negotiating strategy that does not suppress emotions even though trying to do so is, in my view, impossible and more likely to result in failure and lasting enmity than in a durable resolution.

Cases involving complex human interactions may be better suited to take place in person. I have in mind tort claims (car crashes, medical malpractice, Title VII, etc.) where the parties are strangers to each other. A computer screen makes it somewhat harder to read the non-verbal cues that we rely on in every negotiation.  That said, with the courts struggling to move trials (bench and jury) online, the pandemic has created an opportunity to innovate and test new approaches that compensate for the differences in the two experiences. In fact, I recently mediated a case involving sexual assault using zoom; there were 5 parties, sensitives issues and extremely complex and nuanced case law and the case resolved.

A surprising counter-point to the circumstances I just described is divorce mediation, where emotions often run hot but the absence of physical proximity online has not been a real impediment to settlement. In fact, it seems to me to be beneficial where the parties have a history of an abusive or coercive relationship or they lack the skill to successfully negotiate their differences face to face.

On the other hand, transactional disputes which play out against a “factual” background and the interpretation/application of contract provisions, case law and statutes, seem to readily lend themselves to online mediation. Both the joint sessions and the caucuses are focused, the presentation of documents and other demonstrative evidence is easy and the time seems to be  used more efficiently than in the typical in-person mediation.

In sum, I do not think that in-person mediation provides an across the board advantage over online mediation except in particular cases. Under the current and unfortunate conditions, online offers a clear advantage - safety for everyone involved. Otherwise, time will tell how we use online mediation when we again have a choice.