Online Mediation
Online mediation uses widely available and easy-to-use technology to host the mediation online, without the need for all participants to gather in one location. It is not a brand-new invention. Online mediation has been used successfully for several years, beginning well before “social distancing” prevented parties from engaging in face-to-face mediations. The pandemic merely allowed more people to experience the online mediation process first-hand, and has led to a growing recognition that online mediation is an effective alternative to face-to-face mediation.
The Advantages of Online Mediation:
Online mediation offers many advantages over more traditional mediation.
These include:
- Convenience. Mediating online avoids the hassles of travel across the state or the nation to attend an in-person mediation.
- Ease of Scheduling. The choice to mediate online opens up more dates on the calendar for scheduling the mediation. The participants and the mediator do not need to schedule several days for travel to and from a single in-person mediation session.
- Less Expense. Online mediation avoids the costs of travel, hotels, meals, rental cars for the parties, attorneys and mediator.
- Greater Choice of Mediators. Because mediators can conduct the mediation from anywhere, the parties and their lawyers can identify and select a mediator that is best suited for the particular issues in the case, even if the mediator is physically distant. Because travel costs are reduced, a more highly sought-after mediator who may charge a higher fee still can be retained by the parties at a reasonable cost.
- Online Mediation can Produce Early Resolution. Because online mediation is less expensive and can be scheduled more easily, many parties – with or without lawyers - elect to involve a third-party mediator in an early discussion of their differing perspectives, before they resort to litigation. The process allows participants to raise different perspectives early, gather information that may be needed to meaningfully continue the discussion, and determine whether there are options for resolving the dispute without resorting to litigation, arbitration or other more formal (and costly) methods of resolving the dispute.
- Online Mediation Works. The dynamics of an online mediation are different than what experienced lawyers and party representatives may expect from a face-to-face mediation. Experience is showing, however, that online mediation works as well as and sometimes better than in-person mediation. The reasons are still being studied, but parties tend to be more comfortable and experience less intense emotions when they are in an online environment. This allows them to employ their executive decision-making thinking more effectively in the course of considering resolution.
- It’s New, but it’s Easy to Learn. It is normal for people to fear and resist something that is new to them, and which initially feels awkward. The technology and the process is pretty intuitive and easy to learn. We will work with each participant – attorney and party – to build trust and comfort in the process.
What Types of Controversies are Well-Suited for Online Mediation?
Any conflict can be effectively mediated online. Certain cases, by their nature, seem to be particularly well-suited to an online mediation process.
These include:
- Any dispute where the parties are geographically separated.
- Any dispute where the parties would benefit from a less expensive, more timely and more efficient way to discuss issues between them while minimizing damage to their continuing relationship that a lawsuit will cause. Examples include workplace conflicts, business partner disputes, family conflicts over family assets, and church or non-profit conflicts.
- Cases where the amount at issue in economic terms does not justify the cost of travel for an in-person mediation.
- Complex, multi-party cases, including construction cases, where the number of parties alone creates logistical challenges for scheduling, hosting and holding an in-person mediation.
- Estate and probate litigation among several heirs or beneficiaries.
- Easement and property boundary disputes or other cases where visual depictions or other exhibits are helpful to communication.
What’s the Process?
The process for holding a mediation online begins in the same manner as for a face-to-face mediation. Typically, parties or their lawyers first consult the calendar I maintain on my website to see if I am available within a timeframe when all parties will likely be available. They can also call my office and speak with my paralegal, Lori Hester. When a handful of workable dates are in hand, a call is made to schedule a preliminary mediation conference. During the preliminary mediation conference, we confirm the date and manner of the mediation, as well as discuss preliminary steps to overcoming obstacles to discussing resolution. The preliminary conference is followed by the circulation of a mediation agreement sent by letter to counsel or any unrepresented parties.
The mediation agreement includes terms that govern and guide the participants’ online attendance. These terms ensure that the process runs as smoothly as possible and meets all requirements for security and confidentiality.
Prior to the mediation session, the parties submit information to the mediator and prepare to participate online. A checklist for online mediation is circulated. As noted, my office his happy to conduct a “test run” with any participant to ensure they are equipped to participate in the online mediation. Just call or email to set this up.
What to Expect on the Day of the Mediation Session?
The day and time of the Settlement Conference, all participants join the conference by clicking on the link provided. While the link may allow each participant to elect to use their regular browser as the platform for the conference, it is recommended that the participants choose to use the software or application. If it has been downloaded and installed previously, the participants will be able to choose to join using the software or application. If not, there will be an opportunity to download and install the program first.
Once the link is activated, you will have the opportunity to join using your computer’s audio and video. This is the preferred option. You can also test your audio settings as well. If they are not functioning properly, we can troubleshoot. You can also call into the meeting with your mobile or landline phone using the phone number provided. Just enter the meeting number when prompted.
Upon joining the meeting, the participants will be in a “waiting room,” without any other participants. When all or most of the anticipated attendees have joined the waiting room, the mediator will bring all participants into one meeting room. Parties and counsel will be able to see one another if they have their video enabled. If parties choose not to have their video enabled, that is fine, but this joint session is typically very brief – less than five minutes. Brief introductions are made, a discussion of the general outline of the day is provided, and expectations about confidentiality are confirmed.
The participants will then be divided into their respective “rooms.” Parties and their attorneys will be separated from other parties and other attorneys. The mediator will meet in one “room” for a time, and then exit to speak with other parties in their “rooms.” The participants in the room may still speak to one another; all discussions are confidential and secure from the mediator and any other party. Before the mediator enters any room, he will typically text or otherwise communicate with the parties to ensure that it is an appropriate time for the mediator to enter.
The process of meeting with the parties and their counsel continues thereafter. Each mediation is unique, but eventually the process produces a resolution of issues or an understanding of what remains in dispute and must be resolved by other discussions or by a legal trial. The mediator may prepare and circulate through email a written agreement stating the parties’ resolution of the dispute at the conclusion of the mediation. Signatures are obtained by DocuSign or a similarly enforceable electronic signature process.
This web site is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. All services are provided by Glenn E. Tremper, PLLC, a Montana Professional Limited Liability Corporation.
(406) 761-9400
Glenn E. Tremper, PLLC
P.O. Box 2263
Great Falls, Montana 59403