Virtual mediation an effective option for the legal profession

By LegalMatters Staff • Video conferencing is proving to be an effective tool that needs to be embraced by the legal profession, says Toronto-area employment lawyer and mediator Stuart Rudner.

Rudner, founder and principal at Rudner Law, says while he considered the technology for his practice in the past, the coronavirus lockdown hastened its introduction and the results have been positive.

“Like anything else, it is just one tool, and there’s no one perfect tool for every scenario,” he tells LegalMattersCanada.ca. “In some situations, in-person mediation may be better, but in many cases, if not most, virtual mediation is as good or better.

“Each one I have done in the past few months has been settled; in my view, it has been incredibly effective,” he adds. “I am hoping we can continue to make this part of our profession.”

Rudner says COVID-19 thrust the world into a new reality almost overnight and the legal profession was no exception.

‘Workable substitute’

“We’ve had virtual sessions almost forced upon us during the past few months, although some have chosen to delay mediations, which is unfortunate and short-sighted,” he says. “Some have really embraced it, and others see it as a workable substitute in a pinch.

“The most important thing is that it works,” Rudner adds. “I know many people have argued it cannot be as effective as in-person mediation. It can be. If not, there would be no point in having this discussion.”

Among its advantages, he says video conferencing is cost-effective and convenient.

“It also provides a comfort level for the parties involved, an aspect that many of us may not have previously considered,” Rudner says.

He explains that he mediates employment issues, often with plaintiffs who may have little experience dealing with the legal profession.

“Typically, you’ve got an individual who may not be used to going to downtown office towers where they are surrounded by lawyers. It can often be very intimidating,” Rudner says. “In virtual mediation people can be at home, in their living room, surrounded by family. In some cases, parties have had their dogs with them. That helps them feel more relaxed and much more willing to engage in meaningful discussions to try to find a way to a resolution.”

He adds there is no travel involved and no need to rent a meeting facility, which cuts down on cost. It can also be easier to bring people together quickly, Rudner adds.

“I was recently able to schedule one mediation with two or three days’ notice, which is almost unheard of,” he says.

More time for mediation

Because travel is eliminated, the result can be more time for the mediation, Rudner says.

“It allows people to be much more flexible,” he says. “Often in an in-person mediation we are all gathered somewhere and people have to leave at a certain time to get home to take care of their commitments. However, if they are already there they can see to those things while continuing on with discussions.” 

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Rudner says with anything “there’s a bit of a learning curve” so communication is essential.

“I make an effort to explain to counsel how things are going to work so that everyone is comfortable and there are no surprises,” he says.

Rudner dismisses claims that virtual sessions are not as effective because the parties are not in the same room.

“I can see each individual participant, I can see their face clearly. I can read their reactions. You can see enough to read their body language,” he says. “The only downside is that you may have some people who are uncomfortable with the technology.”

Rudner says he views video conferencing as one more service to offer clients.

“There may be some mediators who decide to be solely virtual and some who will not provide anything but in-person sessions but I prefer the flexibility and would rather be able to offer a choice dependent on the circumstance,” he says.

Rudner expects that not all lawyers will get on board but says judges are already showing support for video conferencing.

In Arconti v. Smith, the court was told the plaintiffs were opposed to a videoconferencing examination, arguing they needed “to be with their counsel to assist with documents and facts during the examination” because it is more difficult to assess a witness’s demeanour remotely.

‘We should not be going back’

However, Ontario Superior Court Justice Frederick L. Myers rejected the argument.

“In my view, the simplest answer to this issue is, ‘It’s 2020’. We no longer record evidence using quill and ink,” he writes. “We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

Rudner says he believes “many of our judges have taken that approach.”

“It’s time our judicial system evolved and became more modern. This is the reality and I don’t think many judges will be sympathetic to lawyers saying ‘No, we have to do things the way we have always done them,’” he says. “They are pushing lawyers to adapt to the circumstances, and not on a temporary basis.”

Rudner says with so many advantages to virtual mediation it only makes sense to welcome the technology.

“I am certainly hoping it will have a significant impact on our profession and people don’t just return to the ways of the past as soon as that option is available,” he says. “Many lawyers are skeptical, but I have personally seen some converted once they see how effective a video mediation can be.”