I am a big fan of having everyone in the same place at the same time focusing on the same dispute. I find that if this occurs, more often than not, the matter will settle. The parties are focused on the matter at hand and are “forced” to “deal” with the issues. Being physically present, they cannot “sidestep” or otherwise avoid the dispute. They cannot let the pull of other matters kidnap their attention or use those other matters as an excuse to avoid dealing with this one.
In a perfect world, everyone being in the same place at the same time focusing on the same thing is doable. But, it is not reality. Often one of the parties lives far away or due to a lack of transportation or other reason, cannot physically be present. Or, opposing counsel have several cases together and desire to use the “spreadsheet” method of mediation and mediate several matters simultaneously. In this scenario, having the clients available by telephone works out better and even the attorneys may appear by telephone.
In most instances, conducting mediations by telephone has not been problematic. However, recently, I conducted two mediations by telephone that did not settle most likely because they were by telephone and not in person.
In both instances, everyone appeared by telephone – both attorneys and parties. One mediation was scheduled by telephone because it was set up on 2 days’ notice on the eve of trial. The other was by telephone due to the distance involved. In both instances, I spoke only to the attorneys who in turn spoke to their clients. My lack of direct contact with the actual party probably contributed to the lack of settlement; I find speaking directly to the party face to face often alters her viewpoint and perspective. This is so, even if I am simply talking with her counsel and she is listening to our conversation. What we discuss affects her thinking. Instead, on these two occasions, everything I mentioned to counsel was filtered by the attorney in her conversation with her client. And… I have no idea how much or little of what I said to counsel was relayed to the party or how it was conveyed.
In the past, I have also conducted many mediations in which the attorney is present but the party is appearing by telephone. Again, the same dynamic is present; I am speaking to the attorney who is then calling her client and relaying either very little or a lot of what I have just said. Like the telephone game (using tin cans) we all played as kids, a lot probably got lost in translation so that the client knows little of my exact conversation with counsel. What she hears is second hand and perhaps sanitized.
So… the take away is while mediation by telephone is sometimes a necessary evil of our very mobile and time crunched society, be wary of the dynamics involved. While it may be more “convenient” to conduct a mediation by telephone (in whole or in part), it may also sow the seeds of the inability to settle. Sometimes, there is simply no substitute for being in the same place at the same time focusing on the same issue.
… Just something to think about.
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