As mediators, our job is simple: help the parties to reach a resolution to the dispute that brought them to you. But as we all know, that is sometimes easier said than done. The purpose of this article is twofold: to discuss some opportunities that video mediation provides, and to discuss some creative ways to help the parties break an impasse.
Benefits of Video Mediation
One silver living of the pandemic is that it has forced the legal profession to adopt modern technology and stop insisting that everything should be done the way it always has. As I have said many times, video mediations can be tremendously effective. They are not just a “reasonable substitute for the real thing”; in many cases, they are better.
The practical benefits, such as the convenience of mediation, have been discussed many times. However, some of those benefits can actually result in a more effective mediation and a greater likelihood of success (settlement). For example:
The Right People at the Table
I focus on employment mediation, and the reality is that in many cases, corporations do not send the true decision-maker to mediation. However, if they can participate by video, it becomes much more viable. In a recent case, in-house counsel for the defendant was based in Houston. She would never have flown to Toronto for the mediation of a wrongful dismissal claim worth somewhere in the range of $50,000. But because she was able to participate remotely, she did.
As a result, we did not encounter the all-too-common scenario where we learn that the company representative has limited authority and we have to call someone else to get more. In many cases, that person is unexpectedly unavailable or, if they can be reached, the company representative and their counsel insist on speaking to them without the mediator present. As we all know, this makes it far more difficult to reach a deal, since the decision-maker will not have the benefit of going through the process of mediation and understanding why we recommend a particular resolution. All of this can be solved by offering mediation by video.