From Opinion Article from PBCBA Bar Bulletin
By Maxwell M. Christiansen
COVID-19 has obviously changed the way people handle business. These days, we stay away from each other if we can. Why? Because it has been recommended by the CDC and virtually all our elected officials. Society expects distance. If we don’t absolutely need to have that meeting in person, it’s going to be over Zoom or some other video conferencing service. Some businesses have been meeting this way for a while, but for most this is the new normal, and we don’t really have a choice. So it begs the question: do we accomplish as much over Zoom?
For mediations, I believe the answer to that question is sadly, “no.” Zoom mediations do not work as well as mediations in person. Zoom is great for certain meetings where the convenience of meeting from anywhere in the world outweighs the interpersonal benefits of meeting in person. Depending on the goal of the meeting, it may not be as important to physically be together in the meeting. That is not the case for mediations. Last year, if I asked a colleague how his mediation went, there was over a 50/50 chance that he would say, “it settled!” The most common answer I get these days is, “Impasse.” As a litigator during the pandemic, I have not yet personally witnessed or even heard of a successful Zoom mediation, and the reason is obvious: the parties are not physically coming to the table.
There are two major reasons why being actually present at the negotiation table facilitates a mediation, 1) the parties are physically confined in one location with each other, and 2) they invest a significant amount of energy to attend mediation.
Confining the parties in one location for mediation has been shown to be a major factor in reaching settlement. Most mediators will recommend the parties not leave the mediation if a resolution appears possible. If the mediation runs long, the mediator may even suggest everyone eat dinner at the mediation. Mediators know the parties’ willingness to settle deteriorates when they pause the negotiation, even for half an hour.
The change of setting is also important. Even if the parties choose not to meet in the same room, but instead in neighboring rooms (against the mediator’s advice), both parties still physically come to the negotiating table. Typically, the parties arrive at a neutral location. In doing so, they exit their element and enter the mediation. The setting of an in-person mediation reminds the parties that the other is there too, nowhere else, and for the same reason – to leave the dispute in the past. They understand that they are together for a brief moment, and that is their chance to try to smooth things over, ask for what they want, make concessions in return, and explain their reasoning. Open, honest, and effective communication is very important to a successful mediation. Lay everything out on the table, listen to the other side, ask for what you need to reach an agreement and see if you can get there with compromise.
Such communication may be harder to achieve over Zoom because the interpersonal atmosphere is reduced to staring at a computer screen. With Zoom, the parties simply open their laptops from home or the same office from which they have been managing their lawsuit, and in their mind may still be in “litigation mode.” It feels like just another conference call about the case. The opposing party is just another box on their screen that they can turn off if they want. Some thoughts may arise: “Who else is in the room on the other side? What do they have on their desk that we don’t have here?” The parties’ temporary trust for each other can become strained, and in the end, the symbolic handshake is not possible.
Mediations in person also require the parties to make a substantial effort to actually meet. By showing up, they level with each other before mediation even starts. If the mediation is voluntary, the parties mutually decide to invest their time to travel to the mediation to consider the other party’s perspective on the case, usually with the understanding that mediation could last a while. The parties both cancel most of their other activities that day, and the process itself is a major investment of energy. That investment has a particular psychological effect on the parties that can cause them to shift away from dispute and towards resolution. They made the effort and they want it to pay off.
In contrast, parties to a Zoom mediation do not invest enough energy to trigger that binding psychological effect. It is far easier to end the mediation over Zoom. The parties do not need to get up and leave the building, they simply need to click “Leave Meeting,” and the mediation impasses.
It is therefore my opinion that mediation is not as effective over a Zoom call. Moving forward, I urge my colleagues to confirm whether their clients want to mediate over Zoom, or whether wearing the mask and keeping a six foot distance in a room is satisfactory.
Attorney Maxwell M. Christiansen was born and raised in the Palm Beaches. He graduated from Emory University, where he earned a Bachelor of Science in 2012, majoring in Neuroscience & Behavioral Biology and minoring in Mathematics. Max graduated from the University of Florida Levin College of Law in 2016 with a Juris Doctor and Certificate in Intellectual Property. Max is an associate business attorney at The Law Offices of Paul J. Burkhart and litigates various business disputes on behalf of corporate clients, including breach of contract, fraud, construction, and Internet defamation claims. Notably, Max has successfully removed from various websites, such as Google, damaging and untrue reviews posted anonymously on the Internet.