As Ontario slowly emerges out of the shadows of the pandemic, there have been endless discussions about whether we should move back to in-person mediation or continue online.
It has been 18 months since Canada declared the COVID-19 Pandemic with no certainty that it will all be over anytime soon as Ontario walks into a fourth wave. Whilst many offices are facing reopening plans, there is still reluctance across industries to go back to work in person. Statistics Canada reports that 90% of employees working from home feel just as productive as working in the office. In fact, 32% of the employees say they feel more productive at home than in the office. So why go back?
In early April 2020, ADR practitioners transitioned their practices to an online format to meet the COVID-19 restrictions, moving us quickly into the 21st century. Grappling with new technologies, skills and strategies, we began providing virtual mediation that has proved to be effective as well as resourceful.
In recent months, many mediators across Ontario have polled the question, “Will you go back to in-person mediation” on various platforms, including LinkedIn. At a glance, when the results have been publicized on social media, the polls show many practitioners happy to set up camp for online mediation, whilst others are wanting to get back to “normal” and continue in-person mediations.
When I have been asked to provide my preference, I found that there was no straightforward answer to the question. Opting for the preferred mode for mediation requires considerable thought. The first is whether I can keep myself and my clients healthy and Covid free. Do I need additional rules and protocols in place to keep an in-person mediation safe for all participants if this is my chosen mode? How do I choose between virtual and in-person?
There have been several discussions regarding the benefits of online ADR. In fact, back in March 2021, I watched the debate on “The House Prefers Virtual Hearings” at the Arbitration Place Invitational pre-moot. The two powerhouses of arbitration, Neil Kaplan (for) and Hon. Ian Binnie (against), laid down the advantages and disadvantages of virtual ADR. Assured by his strong arguments that the majority would agree with Kaplan, I was surprised when voters preferred Hon. Binnies arguments against virtual ADR.
I enjoy virtual mediation and I am not suggesting that Covid-19 (when it finally dies) should take with it virtual mediation. There are clearly many advantages, including convenience and costs savings. I think that there are important reasons why in-person mediation should be the default for the sanctity of the profession.
Generations and even centuries back, the diction may have changed, but essentially the definition and intention of mediation remains the same. It is an interactive process that requires communication by all participants and a deep, personal understanding of the issues. It’s the gathering of information that will help the participants determine the right resolution. When high emotions and complexities in a case are the overriding features, virtual mediation can be limiting and the mediator’s interpersonal skills can feel ineffective. Despite the advanced Zoom platform that has kept my practice alive, I find it is not a replacement for in-person mediation. It is difficult to read body language and empathize effectively, which creates distance between the mediator and the participants. At times, it can make the mediation feel purely transactional, which is not intended. There is still a lot of discomfort among clients’ ability to navigate technology that can drastically affect the mediation. Clients who do not have access to a computer, internet services or private spaces are severely disadvantaged.
There is another aspect for consideration. In-person mediation allows the continuance of social interactions and hallway conversations between mediators and potential clients that in my opinion are extremely important for the grown of the profession. For those who are trying to establish a mediation practice, networking, gaining exposure and training are pivotal aspects of their careers. Virtual mediation has seen a tremendous drop in shadowing, creating barriers to entry into the profession. Networking virtually can be a hit or a miss, and once again take away the ability to read body language. Trying to overcome this requires exceptional effort to network online that leads to Zoom fatigue and an investment in time that is not always affordable.
Although many mediators are cognizant of these issues and have made great efforts to continue training and shadowing virtually, building a career in dispute resolution feels more organic when you can physically face your clients and the trainer.
Ultimately, there are pros and cons to both virtual and in-person mediation. Looking forward, the best mode for the mediation is based on the clients, case, and the profession.
