By: Mark Greenberg
Two months ago, my colleague, Maxwell Christianson, wrote an article titled, “Zoom – The Worst Thing to Happen to Mediation.” I respectfully disagree.
Our legal system accepts change slowly, and often begrudgingly. Video conferencing technology is a perfect example. Pre-COVID-19, I cannot think of any court that routinely allowed video conference attendance, other than criminal first appearances. Few, if any, Florida courtrooms even had the capacity for it. COVID-19 changed all of that. Our court system adapted to COVID-19 by allowing video conference hearings, usually via the Zoom platform. Now both Judges and Attorneys are big fans of Zoom hearings, to the point that few expect courts to revert to only in-person hearings after the pandemic. Attorneys have learned to conduct depositions remotely and mediations have occurred with the parties not “physically” present, some even thousands of miles apart. Our firm tracks our settlement rate and it is virtually identical (within 3 percentage points) between live and video mediations. Every mediator I have spoken to confirms the same; that Zoom is just as effective as live, in‑person mediations if cameras are on. Only when people are calling in, effectively transforming video mediations into telephone mediations, do settlement rates
There are some differences with video mediations, however. Zoom allows the parties to remain at home or their office, and in a more comfortable environment. This lets them focus on the case, but as Max points out, does not require them to “invest” in coming to the live mediation. Of course, with children at home for school and daycare limited, those with children find Zoom far more compatible to attending, rather than trying to arrange for safe child care in order to attend mediation. People are also far more comfortable at home than sitting inside a conference room with masks on for hours at a time. Max posits that in‑person mediations encourage the parties to stay longer, but I have found the opposite. It is far easier to pause a Zoom mediation for 30 minutes in order for a parent to pick up a child, than to have them drive an hour from live mediation to do so and then expect them to return. Further, no out of town parties have to catch a flight, placing a hard stop on mediation.
Otherwise, the same factors influence mediation whether by Zoom or live. Is there a trial date soon forcing a hard decision? Have the parties spent enough money that they are tired of attorney’s fees and wish to settle? Are the parties willing to compromise to move forward in their personal and/or business relationship? Would the parties prefer a certain result or an uncertain verdict? Have the attorneys adequately prepared their clients for mediation, including what are the realistic case outcomes should they not settle? None of these factors change when the parties are meeting by video conference as opposed to live. Indeed, sometimes having parties who do not get along physically separated can lead to a better mediation, not worse. Simply put, Zoom has allowed mediations to occur at different times, in different locations, and without the parties spending additional funds simply to attend.
With large corporations, video facilitates the actual decision maker participating in mediation, instead of a local representative who is less informed on the file. This is particularly true with surplus lines insurance companies who underwrite large risks nationwide. With video mediation, the mediator can speak directly with the actual decision maker, read their facial expressions and body language, answer their questions, develop rapport, and often facilitate a quicker and easier resolution of the case. In contrast, with live mediations attended by a local adjuster, the real decision maker enters the picture when the mediator leaves the room and the attorney picks up the telephone to call home office.
Are there times in‑person mediation is better? Of course. You cannot give a hug, apology, shake hands, break bread, or share tears over video. In cases where that will be of substantial assistance, in‑person mediation will be superior. If there is a concern that one or more parties is unlikely to be paying attention to the mediation (despite being on video), then in‑person would be a much better choice. In the majority of cases, however, Zoom mediations have resulted in lower costs, less travel for everyone, and have the same settlement rates as live mediations. It is the best thing to happen to mediation.
Mark Greenberg is the founder of Breakthrough Mediation and Arbitration. He is a successful trial attorney with over 100 verdicts, while representing both Plaintiffs and Defendants. He has a rare combination of First-Party Insurance Coverage and Third-Party Liability experience, along with business disputes, construction defects, community association, and family law matters. Mark has successfully mediated numerous disputes saving parties over $20 million dollars in legal fees.