A few months ago I wrote a post entitled Mediating Cases Under The New (Ab)Normal. When I wrote it, I really had no idea what the New Normal would be. I’m not sure that I do, even now.

What I can say with confidence, several months later, is that mediation can be effective no matter how it’s conducted. Since the lockdown, I’ve conducted mediations in person and by telephone, Zoom and WebEx. I’ve also led “hybrid” mediations — where one party was in my office, and one or more parties participated by phone, video, or both. The good news, for any of you who haven’t participated in a mediation recently, is they all work.

I currently have several in-person mediations scheduled. Whether they go off as planned or someone chooses to participate through some other means, I’m confident the process can be effective.

I recently read a post on the Mediate.com blog about telephone mediations, which reported three key conclusions from the available research on the topic — namely: 1) Telephone mediation often results in settlement. 2) Motivational interviewing techniques appear to increase the likelihood of agreement. 3) High levels of acrimony between the parties reduce the level of engagement in mediation.

Those conclusions accurately reflect my own experience. Below are a few of my own observations regarding the mediations I’ve conducted recently:

  • Since most of the mediations I led before the pandemic had little interaction between opposing parties and attorneys, the percentage of in-person mediations I conduct has not been significantly impacted.
  • By allowing attorneys to be present with their clients at more-or-less private locations, mediation by Zoom & telephone has helped keep client/attorney contact where it should.
  • Remote-connection technology has enabled attorneys and parties to focus on the issues, rather than on safety concerns.
  • During remotely-conducted mediations, attorneys can more easily conduct private conversations with mediators — outside the presence of their clients. This is often more difficult, or awkward, during “in person” mediations.
  • Scheduling is much less complicated when mediation dates aren’t dependent on everyone being in Birmingham at the same time.

The good news for mediators, attorneys and clients
As we continue trying to figure-out how to safely return to normal, we’re lucky to be in a profession that enables us to continue conducting business. Maybe not entirely As Usual, but almost.

How about you?
I would love to hear your perspective on conducting mediations during this time, and I encourage you to share any experiences, frustrations or suggestions I can use to improve the service I deliver in helping you with your mediations.

In the meantime, stay safe — and enjoy the journey.