IS MEDIATION CONDUCTED THROUGH VIDEOCONFERENCING BETTER?

By Bob Worden, Esq. | October 2020

Time for some good news: We already know that we can hold effective mediations online, but dare we say that videoconferencing may actually be better than in-person hearings? 

Human beings are social creatures and most of us would rather participate in-person if possible. In the post-Covid-19 future, both video and of course in-person hearings will be available. I want to share a few observations about the unique benefits that come with video mediation or as it is often referred to, videoconferencing or Virtual ADR.

Persons who participate in mediations using video are more engaged than when they participate over the telephone.

In the pre-Covid era, one or more of the defendants' representatives could be “present” by telephone, either as a participant or just listening in. What happens is that the defendant's representative does not “see” the appearance, demeanor and level of engagement of the opposition's expert or witness. When we talk about jury appeal, that quality is often hard to describe in words. It's difficult to recognize when a party in litigation has charisma and character, but as a brilliant Supreme Court jurist once said: “I know it when I see it.”  The ability and impact of an expert or witness to communicate being likeable is a big plus to that side.

Dare I also add that telephone participation can create a concern.  Is the remote person being distracted by incoming emails, interruptions by co-workers (Oh, the Good Old Days of Being In The Office!) or who knows what else. At least, through Virtual ADR, “everyone can see your face” creating incentive for everyone to pay more attention. Video provides an immediate connection, much more than distant voices over the phone. With the advent of video mediation, my personal experience has been that more cases are settling due to the impact of parties recognizing the likability factor. 

Video enhances the opportunities to read everyone's facial expressions.

Mediators must be sensitive to the expression of emotion exhibited by all parties as a way of gauging how the mediation is progressing.  When sitting at opposite ends of a table, the mediator can easily read how the plaintiff and defendant are reacting to one another.  A smile, a frown, a smirk, a rolling of eyes, all communicate information, intended or unintended, for better or worse. The effect of being fact-to-face during a video mediation make the “dialogue” between parties more transparent, more honest and sometimes more sympatico with one another.  Conversely, there might be an adverse reaction, hence the value of the breakout rooms. Regardless of whether there is an expression of like or dislike, the display of facial expressions provides useful information to be better able to find ways to resolve an impasse to settlement.

When cases cannot be settled and there is information missing to resolve a dispute, video is quite simply less expensive and more convenient.

When an in-person a mediation sometimes grinds to a halt due to the lack of information, there are two options: adjourn the mediation to a new date or spend time waiting while one party tries to produce the required documentation. With videoconferencing, a demand to produce the requested material is simplified by a “let's reconvene a bit later” request.  Even if the missing documentation has not arrived by said hour, there is still time to find an alternative solution. Money is saved due to the increased efficiency of the process, and usually (but not always), the case doesn't have to be adjourned, avoiding the additional delay and expense of rescheduling.

It's much more expedient to bring in experts from near and far through Virtual ADR.

No more traveling hundreds and sometime thousands of miles to appear at a mediation.  Zoom technology and others like it accommodate these needs with experts appearing virtually – a huge savings both in time and travel expense. In fact, Virtual ADR enables the use of experts more frequently, simply as a result of the reduced expense, and renders expert testimony appropriate even in cases of lesser value. Further, the efficiency of videoconferencing can allow an expert to testify in two or more cases in different jurisdictions on the very same day! 

Video mediations tend to move forward with more speed and efficiency than “in-person” mediations.

There is something about video hearings that result in fewer distractions. When in-person hearings convene, participants can leave the mediation room, and can engage in conversations with colleagues in the hallway about other cases, while the participants in the main event, sit and wait for everyone to return. While in-person hearings are more appealing and catching up with fellow colleagues during a mediation “break” is socially relaxing, the reality is that a video mediation is a more focused, more effective experience. As previously stated, with the inherent savings of travel time and expense, it does appear more likely that virtual ADR will become the norm going forward, even when the present crisis is past us.

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Personally, I still prefer meeting in-person conferences – there is no substitute – but the reality is that it that videoconferencing is remarkably effective, and in many ways, more constructive.  So, I think now is the time to give video mediation a try. You may be pleasantly surprised at what it has to offer.

About the Author

Mr. Worden is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and concentrates on high-exposure personal injury and medical malpractice cases.   In 2020, for the third year in a row, Mr. Worden was voted a Top Ten Arbitrator by the New York Law Journal Best of Survey.  He is available to mediate major injury personal injury claims and medical malpractice cases throughout New York State.  He is also a member of Lawrence, Worden, Rainis & Bard, P.C.

Meet Bob Worden, Esq.