ADR CORNER
Zoom – The Worst Thing to Happen to Mediation | Opinion
MAXWELL M . CHRISTIANSEN
COVID-19 has obviously changed the way people handle business . These days , we stay away from each other if we can . Why ? Because it has been recommended by the CDC and virtually all our elected officials . Society expects distance . If we don ’ t absolutely need to have that meeting in person , it ’ s going to be over Zoom or some other video conferencing service . Some businesses have been meeting this way for a while , but for most this is the new normal , and we don ’ t really have a choice . So it begs the question : do we accomplish as much over Zoom ?
For mediations , I believe the answer to that question is sadly , “ no .” Zoom mediations do not work as well as mediations in person . Zoom is great for certain meetings where the convenience of meeting from anywhere in the world outweighs the interpersonal benefits of meeting in person . Depending on the goal of the meeting , it may not be as important to physically be together in the meeting . That is not the case for mediations . Last year , if I asked a colleague how his mediation went , there was over a 50 / 50 chance that he would say , “ it settled !” The most common answer I get these days is , “ Impasse .” As a litigator during the pandemic , I have not yet personally witnessed or even heard of a successful Zoom mediation , and the reason is obvious : the parties are not physically coming to the table .
There are two major reasons why being actually present at the negotiation table facilitates a mediation , 1 ) the parties are physically confined in one location with each other , and 2 ) they invest a significant amount of energy to attend mediation .
Confining the parties in one location for mediation has been shown to be a major factor in reaching settlement . Most mediators will recommend the parties not leave the mediation if a resolution appears possible . If the mediation runs long , the mediator may even suggest everyone eat dinner at the mediation . Mediators know the parties ’ willingness to settle deteriorates when they pause the negotiation , even for half an hour . The change of setting is also important . Even if the parties choose not to meet in the same room , but instead in neighboring rooms ( against the mediator ’ s advice ), both parties still physically come to the negotiating table . Typically , the parties arrive at a neutral location . In doing so , they exit their element and enter the mediation . The setting of an in-person mediation reminds the parties that the other is there too , nowhere else , and for the same reason – to leave the dispute in the past . They understand that they are together for a brief moment , and that is their chance to try to smooth things over , ask for what they want , make concessions in return , and explain their reasoning . Open , honest , and effective communication is very important to a successful mediation . Lay everything out on the table , listen to the other side , ask for what you need to reach an agreement and see if you can get there with compromise .
Such communication may be harder to achieve over Zoom because the interpersonal atmosphere is reduced to staring at a computer screen . With Zoom , the parties simply open their laptops from home or the same office from which they have been managing their lawsuit , and in their mind may still be in “ litigation mode .” It feels like just another conference call about the case . The opposing party is just another box on their screen that they can turn off if they want . Some thoughts may arise : “ Who else is in the room on the other side ? What do they have on their desk that we don ’ t have here ?” The parties ’ temporary trust for each other can become strained , and in the end , the symbolic handshake is not possible .
Mediations in person also require the parties to make a substantial effort to actually meet . By showing up , they level with each other before mediation even starts . If the mediation is voluntary , the parties mutually decide to invest their time to travel to the mediation to consider the other party ’ s perspective on the case , usually with the understanding that mediation could last a while . The parties both cancel most of their other activities that day , and the process itself is a major investment of energy . That investment has a particular psychological effect on the parties that can cause them to shift away from dispute and towards resolution . They made the effort and they want it to pay off .
In contrast , parties to a Zoom mediation do not invest enough energy to trigger that binding
psychological effect . It is far easier to end the mediation over Zoom . The parties do not need to get up and leave the building , they simply need to click “ Leave Meeting ,” and the mediation impasses .
It is therefore my opinion that mediation is not as effective over a Zoom call . Moving forward , I urge my colleagues to confirm whether their clients want to mediate over Zoom , or whether wearing the mask and keeping a six foot distance in a room is satisfactory .
Attorney Maxwell M . Christiansen was born and raised in the Palm Beaches . He graduated from Emory University , where he earned a Bachelor of Science in 2012 , majoring in Neuroscience & Behavioral Biology and minoring in Mathematics . Max graduated from the University of Florida Levin College of Law in 2016 with a Juris Doctor and Certificate in Intellectual Property . Max is an associate business attorney at The Law Offices of Paul J . Burkhart and litigates various business disputes on behalf of corporate clients , including breach of contract , fraud , construction , and Internet defamation claims . Notably , Max has successfully removed from various websites , such as Google , damaging and untrue reviews posted anonymously on the Internet .
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