Recently, amid the current pandemic, I was asked to mediate a case where the parties were not going to appear in person. For obvious reasons, this is becoming more of the norm. And, this may be a continuing trend for future mediations where attending in person is not an option or mediating from multiple locations is a more convenient option.
The preference of one of the attorneys was to mediate by way of telephone. I proposed video conference, but phone was the option the attorneys chose.
I have touched on this topic in previous blogs, but I think it is important to do a side-by-side comparison in order to determine which option is the best option for your mediation.
We can all agree, in-person mediations are the number one choice. Nothing can replace in-person communication. It is, in my opinion, the most powerful way to communicate in a mediation setting.
Video conferencing (virtual mediations) still allows for a lot of the same communication. While the mediator is not in the same room, the mediator, attorney and party(s) still have the opportunity to see one-another in a virtual room. I think it is important to be able to see how a party is responding to the mediator’s communication. Sometimes, without the party saying a word, it is clear how the party feels and is responding to the “flow” of the mediation. And, the mediator’s perception from the body language can greatly affect how the mediator responds and communicates. Think about any in-person conversation you have had where emotions run high. In many ways, it is the same concept.
Much of the above is lost in a phone conference mediation. Yes, there is still communication. You will still be able to get an idea of the party’s position, emotions and feelings from the tone of the party’s voice. But, what is lost is the opportunity to “listen with your eyes,” which is a concept I have learned through my training in reading and interpreting body language. The ability to visually connect with the party and the attorney is, in my opinion, one of the most important parts of the mediation.
Can phone mediations get the case settled? Absolutely. As I have said before, mediation is a process. If the parties will see the process through, the process will often times work (in my experience, more often than not). I recommend using every tool available to ensure the best outcome at mediation. If that means video conferencing/virtual mediation is an option, I recommend going that route.
Tommy Santel is a co-founding partner of Parkerson Santel PLLC. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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