Over the past fourteen months, many of us have gone from reluctance to conduct mediation by video, to grudging acceptance of it as a temporary solution, to embracing it as a preferred means of mediating employment disputes.
Those who know me know that I have always been a bit of a techie. However, I had to pivot like everyone else in the spring of 2020. Fourteen months later, I can confidently say that video mediations are tremendously effective; if anything, my settlement rate is higher in video mediation than in-person. On the downside, I don’t get my steps in when I can move virtually from room to room.
Many of our colleagues have also expressed their view that we should continue to use video mediation even after we are “back to normal” and permitted to gather in a boardroom. Not for every mediation, but for many. After all, we have many tools at our disposal and there is nothing wrong with using the right one for each case.
From the perspective of counsel, the focus should not simply be on whether or how to participate in video mediation, but how to do it successfully. As I have often said, there is a big difference between attending at mediation and winning at mediation. Unfortunately, counsel often miss the opportunity to advocate strongly on behalf of their clients at mediation, treating it less seriously than they would a trial. That is a pity when you consider the number of cases that actually make it to trial.
Some Basic Considerations
We are now overly familiar with online meeting platforms like Zoom, Teams, and Google Meet. While they all have their advantages, I have been recommending Zoom for mediation as it 1) allows for breakout rooms, which are essential at mediation and 2) is the most commonly used and thus most familiar platform.
Most video mediations in employment law matters forego joint sessions, something which was common among the Employment Law Bar in Toronto even in pre-pandemic times. So breakout rooms allow me to easily keep the parties separate. I can use breakout rooms to meet with any participant or combination of participants: one party and their lawyer, one lawyer, all counsel, etc. Those “hallway meetings” we used to have can easily be recreated in Zoom.