Location (Part 2): Decision Framework for Choosing In-Person vs. Remote Mediation

As we emerge from the pandemic, business travel is rising, return-to-work mandates are happening, and in-person mediations are options again. Last week, we discussed bad reasons we thought remote mediations wouldn’t work. But just as we overestimated the necessity of The Room in 2019, we risk undervaluing it in 2025. Here are some legitimate reasons to choose in-person mediation.

Zoom Fatigue

Screens exact costs. Technical issues, straining to interpret expressions on a 13-inch laptop screen, and audio lags all increase cognitive load. If anyone (your client, the other side, the mediator, you) isn’t comfortable with technology, fatigue compounds into frustration.

Staring at a screen all day, fighting with technology, and sitting in one spot as the hours tick by can fatigue the mind and result in the parties reverting to System 1 (reactive) thinking. If you’re in person, you won’t be squinting at a screen all day.

A Controlled Neutral Location

Travel is friction, but friction can have value. Travel can be a break from routine, serve as a ritual, and focus the parties. Everyone arrives at the chosen location, everyone is physically present, everyone knows the priority: The Mediation. No dogs demanding walks, kids requesting snacks, significant others wandering through Zoom, coworkers knocking on office doors. Everyone who made the trip can focus. And travel can signal commitment; both sides will view the other as invested.

Non-Verbal Cues: Trust, Not truth

Firm handshakes, eye contact, direct speech. You may read people wrong entirely, or you may be seduced by a charismatic liar, but you’re still faster to build trust in person than by video. Zoom reduces cooperative signaling (as does keeping the parties apart all day).

For ongoing relationships, in-person meetings add value. While the psychological distance built into remote meetings benefits some cases, in-person drama benefits others. And sometimes it just helps to have everyone around the same table, drama or not. Consider whether this is a case that would benefit from a joint session.

Mediators assess witness stand performance, mannerisms, and jury presentation better in person.

My Take: Modern Distractions and Bad Faith Don’t Care About Locations

I’ve been in mediations where I’ve had a hard time getting my clients to focus because of calls, emails, and texts. I’ve also had a mediator (or three) lament, during an in-person mediation, that they were having a difficult time getting the other side to focus because they were on the phone or lost in their screens.

We are constantly being pulled in different directions, physical presence doesn’t stop that. If people are going to multi-task (hard to stop), home setups let them handle necessities, then focus when the mediator enters the virtual room. Video cameras can make it harder to check out.

I've also seen travel weaponized: "They made the trip. They're desperate to settle." If one side lacks good faith, your trip won't change that.

Technology discomfort, poor remote setups, and ongoing relationship benefits deserve weight. Two decision-making frameworks follow:

The Location Decision Frameworks

Two frameworks. One party-based, one issue-based. Same factors, different presentations. Use what works for your case.

Note: case “value” isn’t a factor. High-value cases may be better suited to be in-person or remote. The case’s underlying nature dictates the location.

The People Framework

Consider the interests and preferences of your Client, Opposing Party, and Mediator.

• Technological Fluency: Are they comfortable with the tools? Will they have a dedicated, distraction-free remote setup? If not, make the trip.

• The Performance Factor: Do they like performing? Do you want a performance? In-person encourages theatrics; Zoom suppresses them.

• Safety and Power: Is there a concern about being in the same room? Is there a clear power imbalance? Will psychological distance help the process? If so, remote provides a buffer.

• Future Relationship: Are the parties in an ongoing relationship (business partnership, co-workers, neighbors)? Is this a case that would benefit from a joint session? Will there be business terms as opposed to just monetary terms? Consider whether sitting around the table together could provide benefits.

• Attention Span: Will the parties be engrossed in their laptops looking at numbers? Are the parties used to marathon zoom sessions? If so, let them do it from their office.

The Structural Framework

Consider the logistics, nature, and evidence of the case.

• Dispute Type (Single vs. Iterative): If this is an employment case where the employee has been terminated, in-person is less beneficial. The relationship is over. If this is a dispute in an ongoing relationship, do the principles need to be around the table together to hash it out.

• Evidence Load: Is this a paper case or an ESI case? If you are sharing complex spreadsheets or analyzing a database, remote screen-sharing is better than huddling over a single laptop in a conference room.

• Party Type: Is this a highly emotional dispute? Keep them separate (remote). Is this a data-driven class action? Keep it efficient (remote).

• Logistics: Are we crossing time zones? Is this a multi-day affair where trust is built over dinner? (Go In-Person).

• The Adjuster Factor: Will the adjuster make the trip? If the adjuster is "available by phone" but everyone else will be in the room, why is everyone making the trip. If the money isn't in the room, don't go to the room.

The goal is to reason through the best location for your case. Ignore the mediator’s lease obligations, your past habits, or the dollar value of the claim.

Think about the location that will put your client in the best headspace to make the best decisions. Then pick that location.

Until next week,

Monday x Morello Mediation.

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