Originally published in Lawyers Weekly Magazine
Written by Luigi Benetton
Link to Luigi Benetton’s website with article
Face-to-face mediations won’t go away, but for cost reasons, they sometimes give way to videoconferencing.
Some professional mediators are banking on this trend. “It’s a great time to do online mediation,” Petra Maxwell says. The founder and CEO of New York-based MediationLine LLC, a “veteran” of about 15 video mediations (plus portions of others) gives several reasons why online mediation should take off. For starters, legal bills can quickly add up, and as the current economic climate continues to take a toll, people’s interest in saving money rises. Meanwhile, divorces, business disputes and other events calling for conflict resolution continue to occur.
There’s also an increasingly techno-comfortable market segment that expects such services. “In a divorce I recently mediated, the male was in New York, while the wife had already moved to California,” Maxwell explains. “They heard I handled mediation online and called me, asking to use Skype.”
Mark Shapiro is a newbie compared to Maxwell, having only participated in one commercial mediation so far. While with his former firm, the Toronto-based partner at Dickenson Wright LLP found himself in the offices of dispute resolution service provider ADR Chambers with the mediator (live) and the other party (via video feed from Ottawa).
“Sometimes you get cases in which dollar values aren’t huge, and this makes mediation cost-effective,” Shapiro says. “To mediate otherwise, lawyers and clients would have to travel.”
Allan Stitt, president of ADR Chambers, admits cost savings may be the only reason to use what his company calls eVideo mediation. “People can be in different cities and can cost-effectively participate in mediation,” he explains. “If somebody has a three-hour mediation, they’re only there for three hours.”
Driving home the cost savings point, he openly states that ADR Chambers charges $250 per remote location, “so lawyers ask whether they would rather pay the $250 or fly to another location for face-to-face meetings.” (Maxwell’s home page states that her services start at $249.)
Joan Kessler is another newcomer to video mediation. “I conducted a mediation where one party was in Korea,” says the Los Angeles-based expert on intercultural communications, and mediator and arbitrator for ADR Services Inc. “He did not want to fly to LA, so we arranged with attorneys to use Skype.”
“It lasted all day for us and well into the night for him. I could see he grew weary, but I had him in the loop.”
Shapiro figures the typical mediation process supports the logic behind video mediation. “After the opening caucus, the mediator shuffles between parties sitting in different rooms. The parties are not in the same room 90 per cent of the time. Do they even need to be in the same city?”
The end-to-end service from ADR Chambers impressed Shapiro. “The settlement documents were prepared, PDFed, signed and returned as if a mediator was there,” he says. “We left that mediation with a signed settlement agreement.”
Stitt claims the concept isn’t new. “At a conference in the States, I attended a session on online dispute resolution and I wanted to figure out how to create an online mediation system, to create the same feeling you get in a live mediation,” he recalls.
The system at ADR Chambers differs from generic videoconferencing. “The mediator controls the process,” Stitt explains. “People can be all on together, and the mediator can ‘drag’ people (the mediator included) into caucus and other ‘rooms.’ The mediator can ‘knock’ on the ‘door’ of a caucus, asking if the party is ready to speak.”
“The mediator can pull up drawing tools to illustrate situations, fill in settlement agreements right on screen.”
Maxwell and Kessler won’t get such tailored features from services like Skype or Google Talk, but these services do have advantages: they’re easy to install, easy to use, and free.
Nobody claims video mediation is anything but a second-best option to live, face-to-face meetings, especially given the ease with which mediators can perceive non-verbal communication from people in the same room.
“In one mediation, the couple sat together in a room and I was in another location,” Maxwell says of one Google Talk session. “I couldn’t see them both onscreen, so they had to shift the camera. I could not see all the cues, the rolling eyes, the fidgeting.”
“It helps to do a face-to-face meeting first,” Maxwell continues. “I need to see how parties interact with one another.”
Skype reliability hasn’t been perfect either, as Maxwell claims she has had to switch parties to conference calls several times.
Technical sophistication doesn’t seem to be necessary. Kessler claims she isn’t the most tech-savvy person, while Maxwell says she’s comfortable with technology, and both quickly figured out Skype.
Maxwell plans to do follow-up coaching post-mediation using online video. “It will probably take me a few months to build this out,” she says.