Online Mediation Past, Present, and Future

Let us first go back and recall those pre-COVID days when mediation meant traveling to a jointly agreed-upon location to gather in rooms in search of a resolution.  Recall the travel, the parking, the elevator, the reception area, and the windowed or windowless rooms.  At that time, online mediation, if it was considered at all, was a somewhat silly notion that clearly could not and would not work.  With virtual uniformity, the dispute resolution community agreed that online mediation could not create the atmosphere needed to put the parties in the correct frame of mind to focus on the dispute at hand and resolution possibilities.  It was roundly agreed that the urgency and dynamics created in cramped rooms with face-to-face confrontation were necessary and simply could not be replicated in a virtual environment.

And then came COVID . . .

Now call to mind the shock of the pandemic and the rush to find alternatives to in-person mediation.  Remember the first time you heard the word Zoom and realized they were not talking about the PBS kids’ show.  Soon, Teams, Webex, Google Meet, and others joined the lexicon, while a bevy of virtual computer illiterates quickly raced to adapt.

As the pandemic dragged on, online mediation went from grudging acceptance to hesitant tolerance to guarded approval.  As time passed, we learned that the mediation community had been wrong.  It turns out that online mediation, when done right, can be successful.  It turns out that meeting in person and a face-to-face confrontation were not necessary to resolve a dispute. Add convenience, time savings, lower costs, and greater accessibility, and suddenly, the old way of thinking was turned on its head. With these revelations, the use of online mediation increased.

The Equal Employment Opportunity Commission (“EEOC”) was an early adopter of online mediation.  In 2022, it reviewed the online program and reported on its findings.  Here are some quotes from the EEOC [1]:

Specifically, participants view the EEOC’s voluntary mediation program to be highly effective, fair, and neutral, and expressed strong satisfaction with the process. The studies also found “near unanimity” in participants’ willingness to participate in the mediation program in the future.

According to the first study, more than nine out of ten participants (98% of employers and 92% of charging parties) indicated that they would be willing to participate in the EEOC's mediation program again if they were a party to an EEOC charge. A majority of participants (nearly 70%) reported that they would prefer online mediation to in-person mediation in the future. Participants cited flexibility, convenience, cost savings, and a “safe space” as reasons for preferring online mediation.

The second study reported that EEOC mediators found that online mediation is easier to use and more flexible than in-person mediation; achieved similar or better quality and value of settlements for both parties; and increased access to justice for charging parties. 

As a volunteer EEOC mediator, I can attest to these findings.  The process was seamless, with the parties, typically oblivious to the history, readily adopting online mediation and counsel, and while not always exuberant, at least accepting.  Once the parties grew comfortable with the process, the mediation proceeded similarly to in-person sessions.  

One matter in particular stands out.  During the online mediation, it was evident that the claimant was very appreciative of the fact that he could participate in the mediation from his rural home rather than having to travel into the city and deal with driving, parking, high rises, unfamiliar surroundings, etc.  Comfort in surroundings translated into comfort with the process and ultimately comfort in resolution of the dispute. 

Of course, all of this mandates that the mediator be adept at running the online mediation.  The mediator must understand the online system being used and be ready to create and move between breakout rooms seamlessly.  The use of exhibits and other documents must be considered in advance and utilized flawlessly during the mediation. The mediator must also be ready for occasional technical difficulties and be ready with workarounds when they arise.   In short, the online mediator must maintain all pre-COVID skills while adopting and honing new skills mandated by the online experience.     

Here is more on the status of online mediation:

• Data from the U.S. Southern District of New York has shown that virtual mediation has similar settlement rates to in-person sessions for many case types, including contracts and employment disputes.[2]
• Mediators are reporting nationally that 70% of their mediations are virtual and 30% are in-person, even after COVID. [3]

Stated positives of online mediation include:

• Cost savings, increased efficiency and flexibility, enhanced accessibility, increased participation from decision-makers, reduced emotional intensity, greater comfort and safety

Stated negatives of online mediation include:

• Lack of personal connection, technical difficulties, security and privacy concerns, distractions, reduced commitment, and power imbalances due to technology

While information on the future of online mediation is sparse, almost every mention discusses its growth, and it seems no one is projecting decline. The consensus appears to be rapid growth in what is already a multibillion-dollar industry, driven by technology advances, lower costs, and broad accessibility.  We have been told repeatedly that AI is going to change everything, and online mediation is no exception, although just how that change will occur is a bit vague.  One thing that is clear, though, is that online mediation is here to stay. Companies such as eBay, PayPal, Amazon, and Google have adopted online mediation platforms, and other companies are moving in that direction. One thing is certain: we are never going back to pre-COVID days.  Online mediation is the future.