THE FUTURE OF Tele-Mediation – Awesome, but not the new normal

-Rodney G. Romano[1]

For Matrix Mediation and most mediators that I know, Zoom has been a Godsend. During the Covid-19 quarantine, Zoom has allowed mediators and their clients to stay safe yet stay productive. Since March 20th, we have been able to continue our practices remotely and seamlessly and functioning at nearly full productivity after a weeklong initial transition period. Telemediation has been our lifeblood during this time. We have been able to continue to contribute to helping our client legal practices and claims professionals maintain their own productivity and obtain closure for their clients. 

No doubt, Zoom is here to stay and will be an important part of quality mediation practices-and probably court proceedings and discovery practices - going forward. The question is: “With the unexpected success of remotely mediating, will Telemediation replace in-person mediations?" I don’t think so and here’s why: Zoom does not provide the same opportunity for non-verbal communication that occurs when people are in the same room. Zoom cannot provide the opportunity to observe how mediation participants interact with each other. Zoom comes pretty close, but not as good as in-person. Our results have been surprisingly similar and the participants have exhibited incredible good humor and patience, but there’s just something missing.

Perhaps you’ve heard the statement that 90% of communication is non-verbal. That theory was first articulated by Professor Albert Mehrabian, who postulated that 93% of communication is non-verbal – 55% is body language, 38% is tone and 7% is words. He considered this formula more applicable in the presence of incongruities between verbal and non-verbal communication, which occur in every mediation.

With an in-person mediation, the mediator can listen to what is not being said and gather up immense information from posture, body language, facial expressions, even the way participants are breathing. The mediator can get a better feel for when to continue exploring an issue and when to leave it alone.

What’s bad about Tele-Mediation? Here are some issues I have noticed:

1.    Significantly diminished access to non-verbal communication/que’s;

2.    Some people still attend by phone so you still can’t see them;

3.    Non-participants can sometimes be seen in a room or passing through; giving rise to potential confidentiality issues;

4.    Unstable connections can cause technical difficulties (although these have not created any serious issues in our experience);

5.    You may have to deal with feedback and naked people not aware they are visible;

6.    There can be distractions;

7.    Health – so much home time can result in social isolation, less exercise and more unhealthy eating. Remember to care for your health.

8.    Security firewalls can slow digital signing of settlement agreements to 20-30 minutes. And finally, No Matrix Mediation meatballs !

What’s good about Tele-Mediation?

1.    Safe from Covid-19 virus, ability to remain safe yet continue to earn a living and help others do the same;

2.    No travel time or expense;

3.    Way lower dry-cleaning bills – you only have to dress professionally from the chest up;

4.    Arguably people concentrate more because each participant is in the other’s face;

5.    Video conferencing is profoundly better than telephone-only appearance, so much so that a strong argument can be made that courts should only allow remote appearances by video.

I hope this provides some useful insight.

[1] Rodney Romano is a Florida licensed attorney, former Board Certified Civil Trial Attorney and current full time Florida Supreme Court Certified Circuit Civil Mediator. He is the founder of Matrix Mediation in South Florida. He has conducted more than 7,000 circuit civil mediations over more than 24,000 hours. Since the quarantine, he has conducted several dozen mediations and his firm has conducted several hundred among them. He is also a state certified/approved Primary Trainer for Circuit Civil Mediation. He is the author of Dispute Resolution Field Manual: Negotiating in the Trenches, Page Publishing, 2019.