Are we ready yet to return to face to face mediations?

Gary Webber Tips, Trends 2 Comments

In the debate on the countervailing pressures to return to normality and help the economy versus continuing to WFH where possible, where do we who are involved in mediations as mediators, lawyers, experts and parties fit?

Many of us have been successfully doing mediations online for the last few months. One of the advantages of face to face is that we can view body language. It is amazing how much one notices when you can see people’s hands, which may show irritation, fear, calm etc. However, online it is often easier to see people’s faces, and the directness of the cameras means that it can feel quite close and intimate, which helps to build rapport. Doing preparatory sessions with the parties and lawyers before the mediation helps greatly, especially with parties who are less familiar with Zoom.

While the point about body language holds, in face to face plenary sessions with a number of participants it can actually be quite difficult to gauge the body language of everyone. In an online session using gallery view, this is evened out as everyone can see each other’s faces at the same time and distance.

When face to face mediations resume, if it is possible to find a venue with enough space in all the rooms, perhaps big boardrooms for all, will that take away connection, especially if we are required to wear masks? Will there be difficulty hearing each other and will it be more difficult to hear the tone that people use? Online we don’t have those difficulties.

Mediations are tiring, whether online or with everyone present in the same building. In a face to face mediation everyone needs to travel to the venue and home again afterwards. Online we sit at our computers all day.  In my online mediations I have become very careful about ensuring that there are clear breaks throughout the day to avoid Zoom fatigue. In our own homes it is easier to relax quickly during a break than it is in a corporate environment.

Whether a mediation is conducted face to face or online, at the end of the day how the underlying factors are handled by the parties is the biggest determinant of settlement. Experience from mediators in this current online phase suggests that their success rate remains consistent, and that any failure to settle isn’t a result of the technology. 

Comments 2

  1. As always, a helpful commentary. And I totally agree that ADR works best when parties actively engage and want to resolve. But mediating in person as you say has disadvantages. Lockdown has shown we can do many things remotely both in terms of convenience, economics and effectiveness. The CA and HC have said repeatedly during judgments handed down during lockdown that justice is still preserved and the parties still enjoy fairness even when evidence is not given live or the parties or their advisers can only attend hearings remotely. The point was made several times that seeing a witness live is not necessarily related to understanding truthfulness. Good witnesses can be very nervous and untruthful ones can be very convincing. Body language is not always the window on truth. The separation of parties and witnesses during remote hearings can sometimes make nervous people more comfortable and therefore better able to give evidence. Remote meetings make mediation more available, both practically and economically.

    While mediations are not necessarily about truthfulness, undoubtedly looking at people via video links allows you to concentrate on them far more than when you are gathered around a table or in a room with others. Ultimately the skill is in the mediator to draw parties out, helped ideally by their advisers who should promote resolution and not antagonise disputes. This echoes the duty of parties, inc their advisers, to help courts to further the overriding overjective – see CPR 1.3. Sometimes I feel that some advisers, both lawyers and experts, forget this, especially the latter who also do not always understand their overriding duty to the court and not the parties – see CPR 35.3

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