It’s fair to say that virtual mediations have proven to be more effective than most of us anticipated. Aside from any technology glitches, the ease of moving from one breakout room to another is very efficient. Attorneys still play a key role in ensuring the mediation has its best chance of success.
First, to make the most of an online mediation, attorneys can help their clients with how they appear on screen to the mediator, keeping in mind that the mediator’s ability to build relationships, establish credibility, and read facial expressions and body language are an important part of the process.
Sometimes the attorneys are actually in person with their clients. But having four or more people sitting around a conference room table diminishes the ability for the mediator to read the room. If you have a group larger than three, I recommend that each person have their own laptop or monitor to interface with the mediator.
Second, I would also advise attorneys to be careful about when they exclude the mediator from conversations about the risks of not settling or the negotiation strategy. In a virtual mediation in which the attorney and client are in the same physical room, the mediator may have slightly less control over the tone set in the room. The process works best when attorneys make an effort not to stifle the mediator’s ability to bring about cooperation and creativity in finding ways to reach a deal.