The courts are stepping in and ordering cases back to in-person mediation, returning to a one size fits all approach that makes it difficult for lawyers to decide how best to use mediation. It is not apparent that the judicial decisions to mediate in-person are based on either anecdotal or empirical evidence that in-person should, as a rule, be the norm. Neither is there any evidence that their decisions in individual cases are based on factors pertinent to that case. 

Instead, let the lawyers decide whether to mediate in-person or online. They are in the best position to determine which method is best for their clients. Self-determination is, after all, a cornerstone of mediation. 

I have previously written about the many important advantages of online mediation. In the order of referral to mediation, judges might include a list of factors for lawyers to consider in making their choice. In the unlikely event that they are unable to agree on one or the other, then let the court decide. But, again, leave it to the lawyers.

Covid changed the mediation paradigm; because in-person mediation was unavailable for the better part of 2 years, online mediation became the subject of a large-scale, long-term, informal study that confirmed its value and effectiveness. Many of the imagined shortcomings of online mediation turned out to be just that, imagined. That is not to say that every case is suitable for online mediation, but the vast number of online mediations helped lawyers develop the skills to pick the method best suited to the case at hand.  

Mediation is not a blunt instrument. It can be employed routinely, or it can be used with intention. We have learned a great deal about mediation during this era of covid. When court annexed mediation first began more than a quarter century ago, practitioners saw it as a threat to their livelihoods and judges feared that it would not work and cases would wind up back on their dockets, unresolved. Just look at it now. 

In-person or online mediation, let’s leave it to the lawyers to decide.

Regards,