An Alternative to Face-to-Face Mediation/Martin Rosenfeld

Posted on May 26, 2013


There are times when getting both parties in a divorce action to a mediator is a difficult chore. the parties may live far from a mediator, the parties may live in different states, they may have differing work schedules, etc. Although it is not the preferred method, in some cases it is appropriate to consider mediation via telephone or Skype. (This post will not consider on-line mediation as such a method can only work well where there is a commercial dispute that can be reduced to a short paragraph by each party why e.g. the product was or was not defective. Divorce mediations need a constant flow of discussion that cannot be afforded by on-line exchanges.)

A mediation where the parties are not all present together is less formal and less focused. Even where parties can be viewed on Skype, they forget that they are being observed. It is not unlikely that a party will be distracted by a Ipad, shopping list, crying child, etc. Clearly, the likelihood of such distractions when all are assembled in one room is greatly reduced. Some aspect of body language is compromised by a Skype conference. In many ways, body language is as important as oral communication. The cues afforded the mediator by observing reactions to proposals is compromised in remote communications. A remote communication, to sum it up, is likely to get a less focused participant that would be afforded in a face-to-face meeting.

There are definite advantages to a remote mediation. It is a far better option than bypassing on a mediation option. Half a cake is better than none. Indeed, it is more than half of a cake. In addition, the convenience of a remote mediation likely opens the possibility for mediations that otherwise would not take place. There are no traffic jams to the mediator’s office, no excuses about the timing of the meeting, and no need to meet the other party in the same room. While parties need to negotiate with each other in person, when possible, it does lead to some anxiety. A remote mediation will alleviate this concern. It is also likely that the relaxed tone and pace of a remote mediation can produce better results in a shorter time than would be afforded in a traditional mediation. 

In any mediation, it is advisable that you only retain a mediator who does not require a retainer for her services. If a remote mediation is a possibility, give it a chance to succeed. If you do not like the results, do not continue with it. If it works well on the first session, see it through to the end. Winston Churchill once said that democracy is the worst form of government except for all other forms that have already been tried. Remote mediation an imperfect system. It is only better than any form of litigation. That is saying a great deal.