Whenever an attorney involved in a mediation asks me if their client can be available by telephone, I am usually reluctant to agree. If the case is important enough to require my personal attention, should it not be important enough to the parties to compel their presence? After all, it’s their case. It also seems intuitively obvious–though I’m sure there are studies to back this up–that mediation is more likely to be successful if people take it seriously enough to attend in person, and if they have the opportunity to communicate face-to-face at least with the mediator and preferably with the other side. Or maybe I just feel that phone mediation, like phone sex, can never be as satisfying as the real thing.
My worst experience with a telephone conference mediation came in a case where all the parties and attorneys participated by conference call. I went along with it because the parties and attorneys were operating from scattered distances, and one of the participants was not feeling well enough to travel. After an initial conference call with the attorneys, I tried to convene a caucus with one party and his attorney. But as soon as I described how the other side viewed the case, the party hung up the phone and refused to participate any further! I have had people try to walk out of mediations before, but at least in a face to face meeting, I can run after them and haul them back to the conference room. But having someone hang up made me feel a bit more powerless. (By the way, I’m sure it was mostly my fault that my way of expressing the situation caused the party to hang up. But that just illustrates the problem in telephone communications. It is a lot harder to judge the effect your words are having on the person you are talking to if you cannot see the expression on their face.)
In other situations, however, the telephone format has proven more successful. In cases covered by insurance, we can sometimes dispense with the claim rep’s presence, as long as the plaintiff’s side agrees and the insurance carrier can gain a full appreciation of the case without listening to the plaintiff tell their story in person. Another advantage of mediation by telephone is that it can sometimes save the parties time waiting for the other caucus to end. I had a mediation this week which would have required at least some of the parties to appear by telephone only. For various reasons, we decided to excuse everyone’s physical presence, and began conducting the mediation through a series of telephone calls. This format may have saved everyone time, and also allows the mediation to continue over a series of days, giving the parties some needed time to think about the other side’s latest offer.
In general, I and I think most mediators still prefer that parties treat a mediation as an important event, that they prepare for, attend in person, and to which they devote their full attention. That seems to be the best formula for success. On the other hand, flexibility must also be a watchword of mediation, and if we make good use of technology like audio or video conference calls and email, we can still accomplish a lot.