Comparing videoconferencing and in-person mediations

A comparison of videoconferencing and in-person mediations involves a discussion of the two processes before the Covid-19 pandemic, the beginning of the pandemic and the present. Before Covid-19, virtual mediation was essentially non-existent and in-person mediation was commonplace; as Covid-19 spread, mediation providers looked for options and now videoconferencing (e.g., Zoom) is the new normal. The difference between videoconferencing and in-person mediation is basically one of convenience contrasted with intangibles. (This discussion does not include the hybrid in-person videoconference mediation necessitated by the need to include a party, counsel or witness who is too geographically remote to appear in person.)

Attorneys prefer virtual mediation because it makes the best use of their time and maximizes billable hours. It also provides attorneys with immediate accessibility, while engaged in mediation, to their own support staff, partners and associates. An important variant is whether the client goes to the attorney's location for the mediation or remains at his, her or its residence or business. An attorney loses some "control" over what a client does and says who is remote and not in the same room. Long-term business clients, whether they are or are not sitting next to their attorneys during a mediation, are probably comfortable with either alternative, whereas individuals, new to the litigation process, benefit from supportive in-person counseling and figurative handholding.

Mediators also benefit from videoconferencing when they can participate from home instead of traveling to their respective providers.

The Equal Employment Opportunity Commission (EEOC), which investigates and enforces anti-discrimination policies in the workplace, performed 10,000 in-person mediations annually until mid-March 2022, when, because of the Covid-19 outbreak, it transitioned to online dispute resolution. The EEOC conducted a survey to measure the performance of online mediation against the in-person method. The survey concluded that most of the participants preferred online mediation over in-person mediation and that procedural fairness, distributive justice and access to justice were greater in the online process. The findings included that 92% of the charging parties and 98% of employers would conduct EEOC online mediation again; 86% of the charging parties and 94% of employers believed that EEOC's online mediation procedures were fair; 60% of the charging parties and 72% of employers were satisfied with the outcome of the online mediation, a rate higher than the same measure taken for in-person mediation previously; and nearly 70% of the participants preferred online mediation to in-person mediation.

The EEOC study concluded inferentially that, since online mediations are preferred, they are also equal to or more effective than in-person mediations. This conclusion has limited application to mediations in general because the EEOC enforces only employment-related discrimination claims, which are not as complex or varied as the many different types of civil disputes that make up state and federal calendars.

Not available through videoconferences are the personal contacts at in-person mediations which the neutral can use to assess a litigant's body language, clothing, other personal characteristics and non-verbal "keys" or clues that may convey certain messages. This personal contact with the neutral may also be more comforting to a nervous litigant than provided by an impersonal monitor. It is arguable, as well, that individuals are more inclined to be truthful and direct when questioned in person unlike when speaking electronically or telephonically. The in-person mediation also allows the parties more easily to review and discuss physical evidence, such as documents and photographs, that are central to the dispute. Unlike videoconferences at a person's residence, in-person mediation does not have interruptions, background distractions and the occasional technical difficulties that can disrupt momentum. It is easier, as well, for a mediator to ask a participating attorney to talk outside of the conference room and away from the client than to make a similar request during a videoconference when this arrangement is more complicated. Finally, as a further intangible benefit of in-person mediation, the parties, when together after a successful mediation, can more easily finalize the settlement terms.

Whether the mediation is conducted by videoconference or in-person, it remains a central feature of dispute resolution. Mediation cuts through entrenched positions and encourages parties and their legal advisers to take a step back and focus on their ultimate goals. A well-implemented mediation, while being cost-effective, brings an end to longstanding disputes and avoids the uncertainty of errant adjudicative decisions, court judgments or surprise jury awards.

Michael D. Marcus is a mediator at ADR Services, Inc., and sat on the California State Bar Court for six years.