I suppose you could say, “why not?” Of course, during the Covid-19 pandemic online mediation is essential. Only by mediating remotely can we do what we do: seek the Best Alternative to No Agreement. BATNA.
The online mediation process to which I am referring is simply the online version of what we used to do face-to-face, not the automated robo-mediation such as is described in THE PROS AND CONS OF ONLINE DISPUTE RESOLUTION: AN
ASSESSMENT OF CYBER-MEDIATION WEBSITES (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1073&context=dltr)
Online mediation has its special benefits in addition to serious social-distancing. Those include not having to travel, participants being in their own (presumably) comfortable environment, and being far away from a disputant with whom a party has had an especially rough relationship with (bitter divorce, embezzling partner). The overall process can “feel” more comfortable for the disputant in that it’s less formal (no suits and ties, typically) and it’s not in some stranger’s mediation suite or (God forbid!) in the office of opposing counsel.
For the mediator, it might mean not needing a physical space thus lowering overhead.
What are the disadvantages of a remote mediation? One is the perhaps lesser ability to follow the subtle visual clues, be it the wiggly hand on the knee, the flush of the cartoid artery, or the bouncy foot. Another is the less personalizing feel of seeing the mediator — or even their own attorney — simply as a two-dimensional graphic on a screen. Occasionally I need to reach out and “touch” someone with emphasis and maybe on the screen that won’t translate quite as well.
Overall, with the modern technology available — fast internet connections, quality webcams (don’t use that thing in you iPad or laptop), and decent audio — online mediating satisfactorily emulates the face-to-face version of mediation.
It took Covid-19 for me to begin something I thought about seven+ years ago when I began mediation. Online mediation just seemed to make sense. I have recently joined mediate.com and their subsite of OnlineMediators.com to try to accelerate my skill-set in this new and burgeoning area.
Will I continue it? Yes indeed. Will I transition to only online mediating? Possibly. Will that be acceptable to my usual attorney clientele? Possibly. The answers to those questions must, of course, wait out the time and experiences. I have expressly asked a couple of disputants about it and they were all positive. Recently, while speaking with an attorney who was about to book a mediation with me, he related a conversation that went some thing like this:
He (speaking to opposing counsel): I found a good online mediator. Looks like we can get this done. I guess we will be doing it this way for a while.
Opposing counsel: I may ONLY mediate online any more. I’m 67 and don’t need to be around that many people any more, regardless of Covid-19.
As they say, the jury is out. You can find me at OnlineMediationTexas.net or Click to email me .
