I read an interesting article about the (often ignored) benefits of virtual mediation. Some of those benefits are obvious, but the benefits go deeper than I realized. In reading the article, I was able to see how all these things apply to the virtual mediations I’ve been doing since March 2020 – they were just happening in subtle ways I wasn’t aware of.
Some benefits are obvious — the fact that people don’t need to travel, park, find unknown addresses (the mediator’s office), and often don’t need to take a full day off work or find child care at inopportune hours. Scheduling is easier, because the four or five (or more) separate participants in a family law mediation can be in distant areas of the Valley, or even out of state, and still participate. And they can come and go during the virtual mediation, as needed. A business appraiser can hop on and off the mediation as needed, and not charge a party for the hours they’re not needed.
The online screen-sharing of documents and immediate, real-time creation of mediation memos (often done online with everyone watching and participating in the drafting) is a huge improvement over the exchange of numerous –sometimes dozens – of drafts with handwritten scribbles. The creation of a memorandum of understanding is now a truly collaborative document rather than something abruptly dropped on the parties for a quick review.
Other benefits are harder to quantify, but once I read about them, I realized they very much apply to most virtual mediations I’ve seen. And these are important enough to lead me to say that virtual mediations have not turned us all into Zoom Zombies and that the personal touch in mediations is not missing when we do the mediations online.
The article noted that the “joint session”, once revered as an integral part of a mediation, had been falling out of favor even prior to the pandemic, and this has been my experience. Now, when a joint session does happen in a virtual mediation, they tend to be more solution-focused rather than advocacy-based, and they are more pleasant and less adversarial. The most effective joint presentations I’ve seen have a folksy and background-based aspect to them, and maybe even a Power Point — as in, here’s a picture of the house we’re talking about; here’s the deed that’s at issue; here’s the Google Map showing how far everyone lives from the children’s school. Pulling up a calendar to show me the parenting time schedule, with things to be negotiated highlighted in purple for discussion, is incredibly helpful in a joint setting.
As for the less-obvious benefits of virtual mediations: the parties seem to be at least as engaged as they are at in-person mediations, but they’re less stressed. Rather than having to endure a (sometimes torturous) drive in rush-hour traffic to an unfamiliar location, they’ve had a more leisurely morning in their own home or going to an office (their attorney’s) they feel more comfortable with. They worry less about what they’re wearing (particularly from the waist down), and maybe their shoes are more comfortable. They don’t worry about running into opposing counsel or the opposing party in a hallway or bathroom area. Their environment now meets their emotional needs far better than a mediator’s office ever could.
If the participants are at home, they’re doubly comfortable, possibly in a favorite chair, and often with a pet nearby. I’ve had numerous dogs and a few cats participate in recent mediations, including a couple of pets who were the subject of our negotiations. Instead of having to ask for a beverage or where the bathroom is, each party has access to his or her own kitchen and facilities. Time-consuming lunch breaks and ordering aren’t necessary, as everyone has exactly what they need at hand during the entire day.
I can often see, talk to, and remember the parties better in an online mediation. Across a table, in-person, a party may be swimming in paperwork, looking for a pen, looking at his/ her own attorney, and in general just being nervous, all while trying to speak to me. Eye-to-eye contact seems to be far superior on the screen. (I always try to be addressing the camera directly, and if I’m reviewing a documents or picture on a 2nd screen, I try to tell the parties why I’m looking off to the side for a couple of minutes.) I feel less distracted by the others on the screen while speaking directly with the client. Sometimes a party will comment on my office background, a picture, or the pair of hockey sticks hanging on the wall in my den. That shows me they’re paying attention.
In general, once we got past the first few awkward weeks of online mediation, I have found myself more efficient, effective, and calm in an online mediation. I have immediate access to documents at my own desk — I never have to worry about leaving the documents I need in the other room, and never have to hunt for a pen. Notes are taken more efficiently right on the computer, rather than my many pages of chicken scratch that tend to get scattered. Everyone who practices family law can attest to the value and saved time of looking at an online shared calendar for parenting time and holiday schedules, and those schedules can quickly and easily be emailed to everyone.
Bottom line: I won’t be complaining about the lack of personal interaction or “connections” that we perceived were the norm with in-person mediations and that supposedly were lost when we went virtual. In-person mediations will still take place when appropriate to the circumstances. But for many people, the comfort, convenience, and savings of time and money during mediation, combined with the far lower stress levels for participants, are pandemic advancements to be celebrated.