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Zoom or In Person?

Deciding what’s right for your case

How Quickly We Pivot…

By way of a historical note, according to a survey conducted by the National Association of Distinguished Neutrals, pre-March 2020, less than 2% of all litigators had ever mediated a case virtually.


By September 2020, more than 95% of all litigators were mediating the vast majority of their cases online.


Today, based on updated survey results, 74.6% of all mediations are conducted online, with the remaining 25.4% conducted in person which raises the question: what makes a case better suited for one format over the other?


Having reviewed the available literature on the subject, it appears there’s a clear regional bias in this country. The vast majority of lawyers in the Carolinas and Florida strongly prefer online mediations (90% to only 10% preferring in person) whereas Californians and attorneys in the Midwest are less enamored with the online approach (38% prefer in person with 62% preferring online negotiations).  As to Texas litigators, 82% of all survey respondents said they prefer or strongly prefer the online format.


Setting aside regional preferences, what will work best for you and your client? Leaving behind what the data says, I will address concerns I’ve heard that in my opinion warrant everyone’s consideration when deciding which avenue is best for your case.

CONVENIENCE

In my opinion, convenience is a two-edged sword.

 

Obviously, for most of us and for most of our clients, it’s a lot easier to log on and participate virtually than it is to get in a car or board a plane and travel to some remote location to sit in an office just to be sharing the same space.

 

On the other hand, with an elderly person or with a person less comfortable with technology, the concerns of online participation can in fact make some people extremely anxious before we’ve even gotten started.

 

All things being equal, I’ve seen many of these concerns quelled by the attorney’s staff doing a bit of “hand holding” in advance of the mediation, just to make sure the technology doesn’t get in the way of making the process flow smoothly. Out of approximately 850 mediations I’ve conducted via Zoom over the past few years, I recall three cases where we had to abort Zoom, and move to conference calling mid-stream due to either a poor internet connection or overall discomfort with the online process, with all three of those cases resulting in an agreement nevertheless.

TIME AND COST-SAVINGS

This one needs no explanation. Online wins.

QUALITY OF MEDIATOR EFFECTIVENESS

Going back to the stats that have been gathered from seasoned litigators, 72% surveyed believe the mediation services provided online are equal or better than that what’s provided in person. Personally, while I like to believe that when I am in the room with a litigant, I have more persuasive power than I do when I am the size of a postage stamp on a zoom screen, my
successful online mediation rates suggests that just may be my ego talking.


Although this is purely subjective on my part, over the past three years, I mediated two cases online that went absolutely nowhere. Afterwards, I wondered if done in person if the results would have been different. I tend to think had people gone to the effort of attending in person, they quite possibly would have had more “skin in the game” and perhaps been more open to trying to work out an agreement. (Having said that, two possible cases out of approximately 850 is admittedly a pretty insignificant number.)

COMPELLING REASONS
TO MEDIATE IN PERSON

  1. Based on the technology involved, the lawyer knows going in that the client will likely be overwhelmed and unable to  navigate the system;

  2. Highly emotionally laden cases where the personal touch is seen as essential to working out a resolution; and

  3. Cases involving litigants where the attorney involved is genuinely concerned that the client may be more inclined to attempt to backtrack and undo the settlement after the fact if the negotiations are handled virtually.                        (PLEASE NOTE: While I can't speak to how other mediators handle this point, in my first round with the parties, I make it very clear that any agreement we enter into is binding, and that as a practical matter, there are no “escape hatches” available should they later have a change of heart. Toward that end, in the approximate 850 cases I’ve mediated online, I’ve had one case where after the fact, the Plaintiff did experience serious regret. But even with this single case, there's nothing I see that clearly links the later back-track to our having mediated virtually.)

COMPELLING REASONS
TO MEDIATE VIA ZOOM

  1. Cases where scheduling and travel planning makes it difficult to find an in-person date that works; 

  2. Litigation involving individuals or attorneys who are immunocompromised or simply prefer to avoid face-to-face interactions to the greatest extent possible for whatever
    reason;

  3. Cases where the parties have such strong personal animosity toward the other side that the thought of being in the same location, albeit in separate rooms, is enough to create considerable anxiety and stress, jeopardizing clear-headed decision-making; and 

  4. Cases where facts and numbers control the negotiation, with emotion and personalities playing a smaller role in the negotiations. 

If having considered all of the above, you are still undecided, please send me or my assistant Angie Maze an email (beth@bethkrugler.com or angie@bethkrugler.com ) and we will be happy to get back with you.


One more concluding note…occasionally we are asked to mediate under a “hybrid approach” where everyone one with one party attends in person, with the other party attending virtually. Personally, I strongly prefer that if one side is going to participate in person, at least one person from the other side likewise attend in person.


I have no specific stats to point to in this regard but can say that for me there’s something that feels lop-sided when one side is in my office while the other side attends virtually. (While I have successfully mediated cases using this approach, I would caution that the negotiations using this approach in my experience have gone less smoothly.)

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