This article is the second of a two-part series discussing the trends of virtual legal practice since the beginning of the COVID-19 pandemic. In September of this year, I interviewed several prominent labour arbitrators in Ontario regarding their experiences with conducting virtual arbitration hearings during the pandemic. In this article, I interview Barry Fisher, Lisa Feld, Sheri Price and Stuart Rudner regarding their experiences with virtual mediations to date and several tips and trends they have noticed during their experiences with mediating proceedings.
Effectiveness of Virtual Mediations
All four of the mediators interviewed for this article agreed that virtual mediations are, at least from a settlement perspective, generally as effective as in-person mediation. Fisher, who primarily mediates wrongful dismissal claims, reported a 10% increase in his settlement rate since switching to virtual mediations and stated that he has yet to experience a circumstance in which virtual mediations have proven less effective than in-person ones. Similarly, Price advised that her settlement rates have remained steady when mediating labour arbitration and wrongful dismissal cases. The four mediators indicated that there are a number of factors that have made virtual mediations particularly effective.
Both Feld and Rudner noted that one benefit is the impact that virtual mediations have on the mental state of the plaintiff. “The clients are MUCH more relaxed,” reported Feld. “They are in their own homes, in casual clothes, and often have other family members/friends joining the session (with everyone’s permission and their signature on the mediation agreement). They have not had to wake up early to drive to downtown Toronto, find a parking spot, take an elevator and walk into a busy and noisy office. They appear to be much less stressed.” Rudner provided the example of a recent virtual mediation in which he had been involved: “I recently had a mediation in which the Plaintiff was an older woman living in a small town. She would have been anxious and uncomfortable in a formal setting, especially if she had to travel to downtown Toronto. Instead, she sat in her living room, with her dogs, and was comfortable throughout the process.”
Both Rudner and Fisher agree that another factor contributing to the effectiveness of virtual mediations is that they make it easier for the ultimate decision-maker to be in attendance. “Distance is often the reason why the actual decision-maker is not physically present during an in-person mediation,” said Rudner. “We have all been through those in-person mediations where the person with the ultimate authority to agree to a settlement is in another city or country, ‘available by phone’ but often unreachable at critical times, which causes the mediation to either break down completely or proceed at a glacial pace. With video mediation, all the important parties can participate.” For similar reasons, Fisher noted that the parties often have better access to the information needed to facilitate settlement discussions. “Employer representatives are usually at the office or working remotely from home with access to all of their files. This means that when issues do come up during negotiations, they have access to information at their fingertips rather than trying to reach someone at the office to look things up and report back.”
Price explained that, in her experience, proceeding virtually also provides parties extra flexibility to run “overtime” when it is needed to secure a settlement: “The fact that parties are usually connecting to the virtual mediation from home means that they seldom have to ‘leave’ at a certain time and are willing and able to continue the mediation until the matter is resolved. This can make for some long days, but may be one of the factors that is contributing to the high settlement rates we are seeing with virtual mediations.”