Videoconferencing proving to be an effective option in mediation

By Tony Poland, LegalMatters Staff • Virtual mediation forced on the legal profession at the outset of the coronavirus lockdown is not only an effective alternative to in-person meetings but will continue to be a good option long after the pandemic ends, says Toronto employment lawyer Ellen Low.

“At the beginning, we were having to really push to get people to do virtual mediation. However, now that people and mediators have done them, I believe they’ll stick around. They are really beneficial in a variety of ways,” says Low, principal of Ellen Low Employment Law. “With very few exceptions the old-school joint session with everybody sitting around a huge boardroom shoving paper back and forth has gone by the wayside.”

She says she has used the online approach numerous times to mediate employment law issues and is getting numerous inquiries about how it works and its effectiveness.

‘There is that buy-in element’

“I had a lot of push back in the beginning about whether or not we were going to be able to have successful mediations,” Low tells LegalMattersCanada.ca. “Many times, there is that buy-in element. I was a little nervous about whether going from having everyone in the same room to online sessions was going to translate, but they have all been successful.

“That’s not to say that they’ve all settled. Some haven’t,” she adds. “But generally, the experience has been very similar in terms of an in-person mediation versus virtual.”

Low says because the clients can participate online from wherever they are comfortable they are generally more relaxed during the sessions.

“I was spending a lot of time in pre-mediation meetings going over the logistics. The where and when are we meeting? There’s that stressful prospect of getting to what is almost inevitably a downtown Toronto lawyer’s office in some box in the sky,” she says. “Sometimes it feels like you are on someone else’s turf because the employer usually has the bigger office or their lawyer has a bigger office.

“With virtual mediation, the client is more at ease. They can be in their own home. They don’t have to find parking or look for me,” Low adds. “It is also much easier for our clients who have accessibility issues.”

Another bonus is there is no fear of an uncomfortable chance meeting with your adversary in the elevator either before, or possibly worse, after, an in-person mediation, she says.

Video mediations allow for more options

Video sessions also offer lawyers and their clients more options when choosing a mediator, Low says.

“Part of the litigation process involves giving some strategic thought about who’s the appropriate mediator for this particular file,” she explains. “What type of mediator do we want to work with in order to achieve our goals?

“Working virtually gives us access to a whole host of people that may not have necessarily been considered because of geography,” Low adds. “For example, there are some really great mediators in Ottawa. Before the lockdown, the question would be whether you were prepared to pay their fees, assuming they would travel to Toronto.”

Although virtual mediation offers the potential for more choice and cuts down on travel time, she says the time she spends on a file hasn’t changed.

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“I am still meeting with the client and doing our preparation session to make sure that everything runs smoothly on the day of mediation,” Low says. “The time spent in mediation is also the same. How I prepare hasn’t changed.”

She says virtual sessions do not yield quicker resolutions than an in-person meeting. 

“I will admit that I was a little surprised by that. I thought some of the time that we otherwise spend waiting for offers to go back and forth might be truncated, but that’s yet to be my experience,” Low says.

The sessions themselves are not much different in terms of how the process she notes.

Break-out rooms used for private discussions

“We may not be face-to-face with another lawyer but we do get brought into virtual boardrooms where we can hash things out,” Low says. “Or I meet the mediator in a break-out room for a private discussion.”

She says she finds lawyers and clients are “both really flexible” when it comes to the sessions. For example, in the past, a lawyer would print out a document and give it to opposing counsel to modify. Now it has to be done electronically with document signing technology. But even though they are not in the same room, Low says she is able to review documents line-by-line with her client.

Prior to each session, Low says she will walk through the process with the client to calm any fears and explain how it will work, ensuring they can access the videoconferencing technology and know how to use it.

While there are advantages to videoconferencing, she says doesn’t expect it to completely replace in-person meetings.

“There are advantages of both, but for example, if I have a client who is not in Metro Toronto, we may want to consider doing a virtual meeting,” Low says. “There is a little bit lost with video mediation in my view, such as having the ability to chat with a mediator while offers are being exchanged or walking down the hall to discuss a particular legal issue with the other lawyer.

“But what has to happen it’s still happening. We are finding ways to make it work.”