The Case for In-Person Mediation

With the help of technology, we demand increasingly quick, predictable and easy access to products and services. But can our desire for convenience, speed and efficiency lead to less meaningful human interactions and lower-quality outcomes? Call me old-fashioned, but I still prefer to buy my clothes in a bricks and mortar store where I can ask for help, feel the fabric and the check the fit.   
 
Our fixation with convenience, speed and efficiency has crept into the dispute resolution field, with a dramatic move away from joint sessions in mediation and increased interest in telephone mediation and online dispute resolution (ODR). I’m not suggesting that all mediations lend themselves to a joint session (see my blog titled The Joint Session: Help or Hindrance?) or that there isn’t a place for innovation in dispute resolution that offers convenience, increases efficiency and reduces cost (check out my blog titled What’s There to Lose?: Communication Risks of ODR), but there is an important place for in-person mediation that is too often overlooked and under-valued. 
 
The mediation process offers disputants a cost and time-efficient approach to resolving conflict. The Ontario Mandatory Mediation Program, started in 1999, was designed to bring parties together - in-person - to encourage early settlement and minimize costs, while at the same time reducing pressure on the courts. Pursuant to Rule 24.1 of the Rules of Civil Procedure, most civil actions in Toronto, Windsor and Ottawa are subject to mandatory mediation. While it’s a required step in the litigation process, most litigants and their counsel embrace the opportunity to mediate in person. But, recently, I’ve fielded some interesting requests for what I’ll call "fly-by" telephone mediation.
 
I was recently approached to mediate a Toronto action. Mediation was, therefore, mandatory. Counsel requested an over-the-phone mediation. Counsel had pre-determined that mediation had no chance of bringing the parties to resolution. They wanted a quick mediation that allowed them to tick the mandatory mediation box and move on to the next stage in the litigation process. The parties proposed not involving the parties in the phone call.  This is not the first time I’ve been asked to conduct a perfunctory fly-by  mediation. I see it as a sham, which raises ethical and professional issues about attendance and good faith in the mediation process.
 
ATTENDANCE
 
Rule 24.1 mandates that parties and their lawyers “are required to attend [emphasis added] the mediation session.” While the rule does not expressly dictate physical attendance, I'd argue it's implied. There may be reasonable exceptions to this requirement where, for example, a party lives far away. In those cases, accommodations can be made to involve that party by phone or through video-conferencing.
 
Rules and ethics aside, there are so many benefits beyond settlement that can come from meeting in person.  These include:

• defining and narrowing issues

• exchanging information and assessing the relative strength of evidence

• assessing the credibility of the parties and other potential witnesses

• obtaining a reality check from an independent and impartial third party (i.e. a mediator)

 
Over the phone, many of these benefits may be diluted, or even lost, for the sake of convenience. And, time and again, parties initially resistant to mediation often arrive at an unexpected place: resolution. 
 
GOOD FAITH
 
Good faith participation at mediation requires the presence in body and mind of key decision-makers, and it feeds off their willingness and ability to engage in meaningful settlement discussions. When parties request an over-the-phone mediation simply to “tick a box” on the way to the courtroom, it’s fair to question whether they have satisfied their duty to participate in good faith.
 
TAKE AWAY
 
I have yet to participate in an in-person mediation that didn’t offer some benefit.  While not all disputes are ripe for resolution, there are collateral benefits to meeting in person, including the opportunity to define and narrow issues, weigh the strengths and weaknesses of a case and assess the credibility of the key players in the dispute.
 
Time is precious.  Efficiency is a worthy goal. I also understand the desire for convenience. But, all disputes, even those about money, involve people.  When you bring people together and put a human face on the conflict, magic often happens.