Location (Part 1) – Why Remote Mediations Work Better Than We Expected

I never thought remote mediations could work. I believed in the room. We needed to dress up, go to the mediator’s office, eat snacks and take out lunch, and suffer through the day, together. The mediator needed to see the witnesses face-to-face, assess credibility, influence the parties. All in-person.

Then, the pandemic happened. We were forced into remote mediations.

And… they worked.

During the pandemic, I resolved more cases remotely than in person. My only failed mediations from 2020-2024 were done in person. I wasn’t alone. The rise of remote mediations became one of the pandemic’s many unexpected consequences.

But why? Why did remote mediations work when the prevailing sentiment was they shouldn’t?

The Illusion of the Face to Face Read

This cognitive illusion will not die. Neville Chamberlain’s proclamation “I believe it is peace for our time” after meeting Hitler in person. The illusion of validity in job interviews. Studies show humans barely beat a coinflip when detecting lies face-to-face. Yet people insist that they can divine truth by looking in someone’s eyes. “You can’t take the measure of a man without looking in his eyes.”

But Churchill read Hitler better than Chamberlain because he studied his writings, not facial expressions. Aptitude tests and work samples consistently predict future job performance better than in-person interviews. Studies show that people detect lies more accurately from transcripts or audio alone than from video.

Why would mediations be different?

Face-to-face meetings add “social noise”. A charming liar is more dangerous in person than through a screen. Remote platforms filter out some of the noise. And there’s less of a chance that any party will rely on “obvious” physical cues when expressing their position. Parties understand they must be explicit to be heard.

Paper’s Friction

Accordion folders are tougher to find these days. Early in my career, I used them for every deposition and mediation. I’ll admit, I still like a good binder. But for spreadsheets, I want the .xls, not a .pdf. And for email heavy case, I want all my emails and my ediscovery tools, not a mishmash of hardcopies.

Sharing ESI electronically is easier and more effective. Sharing screens, drag and drop document sharing, direct document management system access without VPNs. There’s less electronic friction through remote mediations. And since 2020, our digital tools have only improved.

Travel’s Cognitive Cost

Travel always took its toll. Post-pandemic, it feels especially punishing. Even commutes feel daunting.

Remote mediations eliminate travel costs. Principals spread across the country or the world, adjustors rarely in relevant jurisdictions. Remote mediations let all decision-makers attend without boarding a plane.

Parties in their chosen settings (quiet, distraction-free, stable internet), reduces cognitive load. Remote platforms reduce travel stress and allow us to be across the city, state, country, or world, and still be in the same “room” for the mediation.

The Discomfort Fallacy

As a junior attorney, I remember a partner telling me that mediations worked because they made plaintiffs uncomfortable. Long days, foreign environment, out of their element, plaintiffs eventually broke.

The longer I practiced, the more I found this advice to be bullshit.

The more stress you put on any party, the more defensive and irrational they become. This applies to defendant reps and plaintiffs, both of whom can be equally reactive. My rejection of the partner’s advice coincides with Kahneman’s idea of System 1 vs System 2 thinking (fast vs. slow).

When we place unnecessary stress on an individual, we force them into System 1 (Intuition/Emotion) thinking. This is rarely the mental state we want any party in during a mediation.

I’ve watched a plaintiff’s shoulders drop, breathing deepen, stress physically leave when they won’t share a physical room with an abusive manager. Similarly, company reps drop defenses when they learn they won’t face terminated employees in person. Remote mediations ensure combative parties won’t bump into each other in the bathroom, elevators, or anywhere on the mediation day.

The Efficiency of a Click

Walking between rooms takes a lot longer than clicking between rooms. And how many times have we all been at an in-person mediation, taken a walk outside of our room, only to see the mediator on the phone in a room apart from any of the parties? Remote mediations mean the parties get a better view of where the mediator is and allows the mediator to move more quickly between the parties.

Preparation Over Performance

Some mediators love a live audience. I’ve heard them referred to as “podcast hosts” or the “sage on the stage”. Others can only bully the parties into settlement. These approaches fail even more via videoconference.

By videoconference, mediators establish rapport through deep preparation and active listening, not by in-person charisma, physical presence, or aggression. Virtual mediation forced more preparation, less winging it. It also favored those mediators who talk less and listen more.

There Is No “Best” Location for Every Mediation

This doesn’t mean that remote mediations are always the best. Any mediator who tells you one format is “almost always” superior is revealing their personal preference.

Maybe they’re like me, comfortable with technology and view themselves as an invested guide rather than a performer. Or maybe they’ve invested heavily in real estate and physical office space and want people in those rooms. Maybe they aren’t comfortable with technology. Maybe they prefer a live studio audience.

Either way, the mediator’s preference doesn’t matter.

What matters is the location that is best for your client and your case.

Next week: downsides to remote mediations and a practical framework for choosing the right setting.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.