Mediation - Face-to Face v Remote

Mediation works – we all know that.

Around 80% of cases reach an agreed settlement – we all know that, too.

But why?

We know it’s quick, efficient, facilitated by an independent mediator, and the settlement can be flexible. And we all know that the traditional court process is slow, inefficient, decided by a judge, and ridged i.e. in terms of the award.

But is that the only reason it works?

In court, the parties generally look on while their respective counsel do adversarial battle. The parties have already been at the mercy of instructing solicitors conducting litigation, with all the bureaucracy that entails, and now they must witness and await the judge’s determination.

In mediation, the parties are intimately involved in the process. And it is intimate. The mediator will, or should, ask the parties to quite literally ‘search their soul’ with regard to the impact of what losing at trial might mean to them, not only financially, but emotionally and to them personally; their relationships, be it business colleagues, friends or family. The mediator does not harness the skills of piercing cross-examination, but one of a psychologist trying to let the parties discover for themselves what losing their case might mean to them and from there start to consider alternative options. It might not be a perfect solution, but one that they could live with and allow them to ‘get on with their lives’, rather than to start or protract a legal process that they are about to, or have already, embarked on, which may continue for years and ‘take over’ their lives, and potentially lose friends and destroy relationships; and one in which they have little or no control over the outcome.

So, the ideal mediator is someone who can build a relationship of trust and confidence with both parties in a relatively short space of time. To do so, they will harness communication skills that allow the parties to ‘open up’ in an almost therapeutic relationship.

Until fairly recently, mediations were performed face-to-face. However, over the last 10 years or so, remote mediations have been introduced. Clearly, these are less expensive and logistically easier. In simple cases (if such a thing exists), I think they have their place.

If I may use an analogy, let’s say you have a medical problem and seek the advice of a doctor in order to discuss it. Now, if the issue was a simple one e.g. a lesion (mark) on your arm and you were concerned it was cancer, a remote consultation might be appropriate. The doctor could see the lesion (be it with some limitation) and advise on further investigations or treatment e.g. a bilopsy. However, what if the medical problem were something more complex, e.g. a prostate issue, where the intimate symptoms and signs had to be discussed in detail and the investigation and treatment options varied immensely? How effective would a remote consultation be? Examination would be impossible. The patient might be extremely anxious and need reassurance. How easy would that be to do remotely? When a patient, or indeed a client, is in a room with a doctor or a mediator and possibly third parties, they can see who’s there. When conducted remotely, this is not as transparent and might cause an individual to question. “Is there an IT administrator ‘watching”? or “Who else is in the room?”. IT issues (often inevitable and common) would only create more anxiety.

We all know what is meant when someone enters the room and has ‘presence’. That is what a mediator must have. They must not only control the room and the process (without looking as if they are), but also read the room. We know that 80% of communication is body language. Body language is difficult to project through remote and sometimes unreliable IT systems.

So remote mediation, although often more popular for obvious reasons, may be less successful for even more obvious reasons. It would be difficult to conduct analytical studies to compare each due to confounders such as the nature of the cases and personalities involved. However, anecdotally, it seems to me that face-to-face mediations would have a higher rate of success with fewer factors to undermine the mediation. In my experience, parties prefer it. Much depends on costs and expectations.

Remote mediations may be appropriate for many matters, but not when you need to ‘pick up’ on the personal and emotional elements of a case. For instance, it’s perfect for a conference when all of the parties have already met but you might wish to meet a client face-to-face for an initial meeting

Like so many technologies over history, just because you can do something doesn’t mean it’s the best solution for every situation. Often many technologies are embryonic and undeveloped and need to be refined before being ‘test-driven’ on real clients.

I’m very interested in disruptive technologies e.g. AI, genetics, robotics, etc. and indeed invest in them. However, that does not mean they are all things to all men/women. Well, not yet, anyway. And sometimes there’s a place for doing things the old-fashioned way. Indeed, sometimes it’s the best and most human option.