As a mediator, I spend a lot of time speaking with counsel about how to win at mediation, as opposed to just settling. In this article, I wanted to discuss mediation in the (hopefully) post-pandemic world; what has changed, how will it look, and what should counsel do to be as effective as possible? While the goal – to get the best possible result for your client – has not changed, I encourage counsel to consider how some of the mechanics and tools available have evolved over time and ensure that they are fully taking advantage of them. My experience is primarily in mediating employment-related disputes, but most of these comments apply more broadly.
Video Mediation
I have said this many times over the past two and a half years: video mediation works. While I settle the vast majority of mediations I handle, the success rate is even higher for video mediations. There are a number of potential explanations for this, including that
- You can always have the decision-makers participate when travel is not involved[1];
- Some parties, particularly less litigation-sophisticated individuals, are more comfortable in their home than in a skyscraper in downtown Toronto (or similar environment); and
- It is easy to accommodate childcare or other needs through short breaks.
I expect that we will continue to see widespread use of video mediation, with in-person mediations being the exception and not the norm.
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