Last weekend, I attended a conference of fellow mediators. One of the points raised was that mediating via Zoom, or any other video-conference platform requires a different skill set and for those new mediators (of less than three years) , it may be the only skill set they know. That is, they have not developed the skills  to mediate in person.

A recent mediation makes me think that this is also true of those attorneys who have been practicing less than three years and thus have never attended an in-person mediation as was the norm in pre-pandemic days.

The original session of the mediation was set for a weekday. Both  plaintiff’s counsel and I got on Zoom and waited for defense counsel. When she appeared, she advised that she did not yet have any authority and so could not go forward : we had to postpone.  Had this been an in-person mediation, no doubt counsel would have notified us way before the mediation with such news. Who wants to get into a car and drive through rush hour traffic just to advise that the mediation cannot go forward? Had the mediation been in person, without doubt plaintiff’s counsel and I would have been told this news prior to the mediation.

The continued session did not fare much better. Again, at the appointed date and time, plaintiff’s counsel and I got onto Zoom and waited. When defense counsel did not appear, I telephoned her to find out what was going on. It seemed that late in the afternoon of the previous day, she had been assigned a court appearance the next morning and so was driving back from court when she took my call. Again, I have to think that if this mediation had been in  person, defense counsel would have notified us  immediately after learning of her court appearance. The mediation would have been taken more seriously. She would not have wanted opposing counsel upset with her for physically appearing for nothing.

Once I got her on the phone, we did mediate for a bit but had to stop as plaintiff’s counsel now had a luncheon appointment. Again, had this mediation been in person, I doubt that lunch date would have been made.

We picked up after lunch only to find that defense counsel had to request additional authority and could do so only by e mail. Again, in pre-pandemic days, I would like to think that the defendant would have been available by telephone  since everyone would be sitting in a conference room waiting around.

A few hours later, defense counsel  got the additional  authority   and later in the day, we all jumped onto Zoom to conclude the settlement.

Reflecting on this mediation that stopped and started and sputtered throughout the day to a conclusion, I wondered how it would have played out had it been in person in pre-pandemic days. I concluded that the parties and counsel would not have been so causal about it because it takes a lot more effort and time to jump into a car and drive to a mediation to attend in person than simply to click a few times on the computer to join a Zoom meeting. And, because of that casualness, perhaps folks are just not as courteous as they should be because wasting  a few minutes to join a Zoom meeting  only to find that it gets cancelled is simply no big deal; It’s not like they got int a car and drove for an hour only to find the in person mediation can not go forward. Or is it?

So, while mediating  by Zoom  has many advantages, this mediation made me realize that perhaps it has allowed for a casualness and/ lack of courtesy  that otherwise would not be present were we mediating in person.

….. Just something to think  about.

 

 

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