Find an Online Arbitrator

The Remarkable (And Often Very Surprising) Benefits of Virtual Mediation

by Eric R. Galton

June 2021

Eric R. Galton

Introduction 

A funny thing happened on April 1, 2020. After over 30 years and 7,500 cases as an in person, high-touch mediator, I grudgingly became, out of necessity born by COVID-19, a virtual,  online mediator. The first month was admittedly a very rocky one for me. I worried about my ability  to handle the very easy technology and that I might accidentally bump the participants off the  platform. I also hated to see myself on the screen. Initially, I felt, albeit incorrectly, that this made  me the center of attention – something I have always felt is the opposite of the mediator’s role.  Today, over 300 virtual mediations later, I have come to the very surprising conclusion that even  post-COVID virtual mediation will remain the dominant form of mediation. Certainly, in-person  mediations will continue in appropriate instances. The impressive benefits of virtual mediation,  which I will describe in detail below, will usher in a virtual renaissance in the modern mediation  movement, which had become static and was in dire need of an infusion of new energy and  creative thought. My prediction is that virtual mediation will expand the reach of mediation, making it more accessible, allowing mediation to be more fully part of the public domain, and provide  mediators with an array of new tools to do their work more effectively. 

Logistical Benefits 

Before COVID-19, I never realized the logistical challenges and costs of having dozens of  people, coming from a variety of locations, to appear at the same place and at the same time. In  matters in which participants were attending from out of city, out of state, or out of country, the  logistical challenges and the costs were even more dramatic. For many mediation participants,  attendance at a mediation might well involve a flight, a rental car, a night or two at a hotel, and a  few days away from home or out of the office. Even for participants in the same city, especially  large metropolitan areas, attendance at mediation usually involved contending with traffic, parking,  possibly arranging for childcare, and other logistical challenges. 

Interestingly, the primary justification for all participants to be in the same place and at the  same time was the joint or general session, which was an integral part of the modern mediation  movement during its first twenty years. During the past ten years, the joint session has markedly  decreased in use, especially in the United States. Without belaboring the trend not to use the joint  session, the absence of the joint session negates the needs for participants to be in the same place. Assuming the mediator is going to meet privately with each party in caucus, why should the parties  need to confront the logistical challenges and costs associated with in-person mediation? From a  comparative basis, the logistical benefits of virtual mediation are far superior to in-person  mediation.

Authority to Settle Benefit 

One of the issues that has dogged the modern mediation movement is having participants  with the authority to settle at the mediation. For corporations, insurance carriers, businesses, and  governmental officials, physical presence at a mediation was not always possible. In such instances,  participants at the mediation session or the mediator would have to make a telephone call to the  person with such authority. Late in the day telephone communication with a person who was not  engaged in the process is a grossly inferior way to attempt to resolve matters. 

Virtual mediation has almost eliminated this persistent problem. Decision-makers, no longer  having to travel or be away from their offices, may more easily appear virtually and be able to  engage face-to-face with the mediator. The ability to engage the decision-maker directly, often the  difference of whether a matter settles, is another significant advantage of virtual mediation. 

Party Engagement 

One of my primary concerns with virtual mediation was whether or not the participants,  especially the parties, would be as engaged in virtual mediation and would I be able to engage the  parties as effectively as I did in in-person mediation. Initially, I struggled because I was concerned  about the technology. As that concern vanished, I also became increasingly less self-conscious  about appearing on screen and focused my attention solely on the participants. And, I began to  realize the surprising and significant benefits of virtual mediation. 

Participants, parties, and counsel are noticeably calmer. Lawyers don’t have to don their  warrior garb or physically appear like they are attending a trial or deposition. Lawyers on both sides  of the case are less concerned about the other counsel intimidating or upsetting their clients.  Lawyers are less inclined to showboat in virtual space. Counsel are generally more civil and more  open to creative options during an online mediation. The ability to collectively look at documents  or photographs using the Share Screen function, compared with a television monitor or screen at an  in-person mediation, is a far superior means of communication. 

Parties also appear to be more relaxed, less stressed, and more open to being engaged.  Why is this so? First, the logistical challenges described above are eliminated. No one had to catch  a plane or a train or contend with miserable traffic or find a place to park. Most parties either  appear from their home or an office in which they feel safe and comfortable. Mediators may have  underestimated, myself included, the stresses superimposed on parties already stressed by the  conflict they are dealing with by physically having to appear at an unfamiliar location. For many  participants appearing from home, a spouse or a significant other or a dog or cat are usually present  to provide comfort or support during the mediation. After a lengthy engagement with the mediator,  a party can go to the kitchen for a cup of tea or get a breath of fresh air. Participants feel less  threatened and thereby more willing to be engaged. 

Also, something else has occurred in society during the forty or so years of the modern  mediation movement. Human beings, like it or not, have increasingly received a significant amount  of information and entertainment online. People learn online. People create things online. The vast 

majority of human beings process information visually. And, during COVID-19, many people by  necessity connected with family, friends, and loved ones online. People have become increasingly more able to express emotion online. Finally, COVID-19 required many people to work from home,  connect and collaborate with business colleagues online, and to do business virtually. So, for many  participants, virtual mediation is simply another aspect of how we have transformed the manner  and method of how we get things done and how we relate to each other. 

From the mediator’s perspective, I see the participants better virtually. The parties are not  lost in a crowded room and I am even more attentive when someone is speaking. I notice facial  changes and body language more strikingly. The parties feel safer because of the space and  distance. Previously, I did not completely understand the relationship between space and safety. A  party, even in a profoundly emotional matter, appears to be more willing to express feelings with a  cat on his/her lap or a dog to pet. The parties also may see my world better. Perhaps my dog jumps  on the bed behind me or someone notices one of my guitars. 

Since the parties are often at home or their office, parties seem to be more engaged  throughout the process and are not worried about logistical or personal issues. In sum, I have  concluded, much to my surprise, that parties are actually more engaged, open, and settlement  oriented in a virtual mediation. 

More Thoughtful Joint Sessions 

Even with joint and general sessions disappearing, joint sessions in virtual space appear to  be more thoughtful, more efficient, and more effective. Lawyers became increasingly less inclined  to have joint sessions for a number of reasons. Lawyers felt that sometimes a presentation at a joint  session was polarizing or upsetting or intimidating and actually impaired the possibility of  settlement. Some lawyers felt a joint session was a waste of time since all parties or counsel already  understood the dispute. Time considerations for the mediation session was another reason lawyers  abandoned the joint session. 

In instances in which counsel have decided to have a joint session online, the presentations  have consistently been more thoughtful and effective. For the most part, lawyers have prepared  concise, effective PowerPoints. Such presentations allow for participants to process information  visually. The use of PowerPoints eliminates inflammatory oratory and also provides parties the  opportunity to see the documentary evidence, photographs, and the like which support someone’s  perspective or position.  

Parties also appear to be more willing to participate in the joint sessions online. The parties  seem to feel safer, more confident, and less threatened. The success of more effective joint sessions  online may result in a reappearance of the use of general sessions in mediation. 

Health and Safety Concerns 

While the world is continuing its battle against COVID-19, the battle is far from over.  Vaccination availability and rates are inconsistent around the globe and, along with vaccine

hesitancy, the elimination of the virus could be many years away. Requiring both vaccinated and  potentially unvaccinated parties to appear together for long periods at the same place, even with  masks and distance, seems unnecessary with a virtual alternative available. From a health and  safety perspective, online mediation seems to be unquestionably superior to in-person mediation. 

Effectiveness and Conclusion 

The evidence regarding virtual mediation in the past 18 months is currently anecdotal. With  my group, Lakeside Mediation in Austin, Texas, settlement rates are the same if not slightly higher  than in-person mediations in over 1,000 virtual mediations. Mediators from around the United  States are reporting similar settlement rates. As mediators become more versatile mediating online,  the effectiveness of virtual mediation will continue to likely increase. Also, the virtual mediation  movement is instilling fresh energy and creativity in mediators around the world and providing the  next generation of mediators with a familiar and comfortable approach to solving complex  problems. Undoubtedly, virtual mediation will remain a mainstay well into the future. 

Eric Galton is considered by many to be a pioneer and defining force in the field of Alternative Dispute Resolution. Since 1989 he has mediated over thirty-seven hundred cases, employing a variety of mediation styles, and consistently maintains a 91% settlement rate. Mr. Galton is highly versatile; he mediates disputes ranging from a half day to two weeks in length, in cities all over Texas and elsewhere in the country, involving anywhere from two to 125 parties from a broad spectrum of ethnic, socioeconomic, political, and business backgrounds. He mediates disputes in over 17 areas of law. In addition to his wealth of practical experience, Eric Galton inspires and motivates participants through his uncompromising ethics, incisiveness, compassion, and genuine love of the mediation process.



Website: www.LakesideMediation.com

Additional articles by Eric R. Galton
The views expressed by authors are their own and do not necessarily reflect the views of Resourceful Internet Solutions, Inc., OnlineArbitrators.com or of reviewing editors.