I’m going to say it. Remote mediation works. In-person mediation works. Hybrid mediation is an inferior process.
I’m not sure why it has taken me this long to speak out about this but after seeing the same problems play out time and time again, I feel qualified to provide you with my perspective. I know I am not alone – every mediator I speak to about this feels the same.
In 2020, there was a lot of scepticism about mediation moving online. Most lawyers I know now accept that the process works well and that it can have many advantages over in-person mediations, especially where clients feel anxious about being in the same building as the people they are in dispute with. I fully understand that.
Post-pandemic, a new form of mediation emerged. A common practice now is for lawyers and clients to be at their respective, separate law firms, whilst beaming the mediator in remotely – what I call a hybrid mediation. Whilst this may appear to work well for lawyers and clients, especially whilst I am not in the room, it makes rapport building, communication and managing the emotional temperature of the room difficult. In my view, it does not work well for the mediator or the mediation itself.
Let me explain why. I hold pre-mediation calls on Zoom the day before a mediation. Most of the time these take place with everyone joining remotely from their own homes or offices. This works because I can see each person up close as if I am in a room with them – it’s like we are sat round the table having a conversation. The audio is good, and I can see facial expressions. I can effectively build rapport with the client, which is an essential part of mediation.
On countless occasions, on the actual mediation day, the setup is completely different with lawyers and clients sat round a table in a boardroom with me on a big screen. Whilst the mediation participants may be able to see me well (as there is just one of me on a big screen), please understand that from my perspective, there is normally a grid of smaller, distant faces on my screen. The audio is often poor. There is often an echo. If I cannot properly see your facial expressions, then I cannot properly follow the mood in the room. This devalues the mediation process because key emotional and interpersonal signals can be lost. I need to be fully present with all the individuals in the room in the way the process requires.
Have you ever tried to join a meeting or workshop remotely where most of the people are physically together? It’s frustrating isn’t it? Ever joined a team meeting remotely where a conversation has taken place round the physical table that you haven’t been able to hear, or a joke has been made and you are on the outside because you are joining remotely? It doesn’t work does it? That’s the experience I sometimes have with hybrid mediations.
When I raise the issue before mediations, solicitors reassure me that their firm has sophisticated technology that zooms in on the speaker. Whilst this may work for team meetings, it doesn’t work well for mediation. I need to see everyone in the room and see how they are reacting to what is being said.
The only way to do hybrid mediation effectively is to have multiple devices on the table so there are cameras on all the key people with one quality audio source. Even if we arrange the technology in this way, the setup can be awkward – sometimes people look at me on the big screen, but my view of them is on the device in front of them, so I get someone looking in the other direction whilst talking to me. Eye contact is important, and this can be lost.
Getting this setup right takes up time on the morning of the mediation and it can be a bit painful at a crucial time on the mediation day. Dealing with technology frustration is not a good way to start what is already a difficult day for clients. It often doesn’t get tested the day before at the pre-mediation call because understandably, clients don’t always travel for that meeting. The audio is often still poor with this option, especially in large rooms with high ceilings. The result is that I must work a lot harder to follow what is being said to me. Often, I have to ask lawyers and clients to repeat themselves multiple times. I have noticed that I get more fatigued and sometimes slightly exasperated when I am having to ask people to repeat things constantly. Mediator clarity, calm and patience are often what holds the process together, so being put under this extra strain risks missing an important part of why mediation works.
I have also noticed that with a hybrid setup it is easier for clients to emotionally disengage when the going gets tough. They sit back and let the lawyers take centre stage. Mediation often requires everyone to sit with difficulty. Sometimes the most honest and open conversations can happen privately with a client. I remember one mediation where a client brought her dog with her to an in-person mediation and one of the best conversations I had with her took place outside the building with the dog doing its ablutions! There are simply more opportunities for trust-building moments in-person.
I realise that for lawyers and clients, you often want to be in a room together. I realise that your clients often don’t want to be in the same building as their relatives and they don’t want to bump into each other in the toilets. I am not asking you to stop doing hybrid mediations if in-person is not appealing. I am simply asking you to think carefully about the format of the mediation and consider the mediator’s perspective, as this will improve the mediation experience for everyone.
Unlike some mediators, I charge less for remote mediation than face to face. That is because I think it is only right to offer a discount to your clients as I have no travel time. Holding a hybrid mediation at a remote mediation price risks creating the illusion of value and efficiency whilst introducing another element of complexity. My intention is to promote a conversation about this and to ask lawyers to think about the setup carefully.
There is also an environmental aspect to my thinking. I have signed the Green Pledge for Mediators. I only accept electronic bundles and do not do paper at all. I even have a Remarkable for my notes. I either travel by train or in my electric car for mediations. Whilst I do personally prefer being in a room with people at mediation, that is not because remote mediation doesn’t work. It is because there is a different energy in-person. Being in-person helps create a collective presence and human connection that helps move difficult conversations forward.
Next time you are arranging a mediation, think carefully about the setup. The format you choose will directly influence how the mediation unfolds.