Choosing Between In-Person and Virtual ADR is More Important Than You Think

Are you connected with someone that you’ve only known in the digital world, like on social media or via videoconference platforms? Then you meet them in person? Surreal, isn’t it?

Same feeling when I attended my first in-person event after a couple years of COVID-19 restrictions. It was a year ago, at the International Academy of Mediators Spring Conference in Montreal. I recall meeting colleagues I’d only met in online meetings up till then or hadn’t seen in as many years. I savoured our long overdue interactions.

And for the past year, at other in-person events, it’s become commonplace for me to meet with lawyers whom I’ve only met virtually at online mediations, or that I haven’t seen face to face in a long time.

The most common thing I am asked at any of the in-person events, aside from “are you sure you’re Mitch Rose? I thought you were taller” is whether I am conducting in-person mediations these days. Most who ask this question are not themselves interested in attending a mediation in-person; they are simply curious.

My answer is “virtually none”.  From March 2020 until mid-2022, my mediations were fully virtual. After that, when COVID-19 related restrictions lifted, I began conducting the occasional fully or partially (hybrid) in-person mediation, but only at the request of counsel and their clients. Virtual remains the recommended mode of participation for the majority of my mediations, based on the needs of the parties and counsel.

It’s a Virtual, Connected World

I’m not alone in my thinking. My experience mirrors that of my fellow members of the National Academy of Distinguished Neutrals (I am a member of the NADN-affiliated Canadian Academy of Distinguished Neutrals (CADN)). According to North American neutrals¹ surveyed in March 2023, 84% of CADN members reported that their mediations and arbitrations in the prior few months were virtual only. Those reporting in-person events amounted to 11.2%, while 4.8% reported hybrid.

Among CADN members located in Ontario, the popularity of virtual mediations and arbitrations exceeds the national average: 92.7% virtual only, 4.9% in-person, and 2.4% hybrid.

However, if one looks only at the answers of CADN members across the country whose practices are 80% mediation, as opposed to commercial arbitration, then 91.5% of mediators report conducting virtual mediations only, 5% report in-person, with 3.5% hybrid. These numbers are consistent with the reporting of Ontario ADR practitioners of both mediation and arbitration described above.

(Note: many of my arbitrations involve fully in-writing hearings – which makes the mode of participation irrelevant – but, for the others, most people are requesting virtual hearings for their client).

But: Mandatory Mediations in Toronto are (Officially) Presumptively in Person

It should come as a shock then that in Toronto—Ontario’s busiest judicial centre where mediation is mandatory for most civil actions—the presumptive method of attendance for mediations is, officially speaking, in-person. Then again, nothing about Toronto should be shocking when one considers most Torontonian’s perpetual devotion to a certain heartbreaking hockey club.

According to the Superior Court’s Guidelines to Determine Mode of Proceeding in Civil, C. 8, all mandatory mediations in the Toronto Region beginning in March 2022 are to be held in person, unless the parties consent to them being conducted virtually, or unless the Court specifies a different mode of proceeding.

Yet, despite the law, the de facto presumptive method of participating in mediations in Toronto is virtual, unless the parties consent to in-person. I am also unaware of any reported decisions in the last year where the Court was asked to determine the method of attendance at a mediation in a civil action because the parties couldn’t agree among themselves.

In my experience, when there has been a disagreement between the parties about the mode of attendance, I helped to quickly resolve it. In other words, I conducted a mini mediation, via email and phone, in the weeks or months before the main event.

Nevertheless, I would prefer to see the law in Toronto changed to reflect what is actually happening on the ground (or, more accurately, online)—otherwise it could lead to both unnecessary motions and unnecessary in-person attendances. Therefore, I was glad to recently learn that the Ontario Bar Association is lobbying to amend the Guidelines.

I’m also delighted to observe more online tribunals and mediation services being launched and expanded in various jurisdictions, as it provides better access to dispute resolution to more people. A couple come to mind:  In Ontario, the Condominium Authority Tribunal (CAT) offers a completely online tribunal for both mediation and adjudication of condominium disputes. And in Québec, there is the Platform to Aid in the Resolution of Litigation electronically (PARLe). Then there is the British Columbia Civil Resolution Tribunal (CRT), Canada’s first online tribunal.

The benefits of virtual mediations are well known at this point (including time and cost savings, convenience, safety, avoiding travel for those a great distance away, expanding geographic coverage to name a few). So, are there any good reasons to have a fully in-person or hybrid mediation? Definitely. I have observed a few.

7 Good Reasons for In-Person or Hybrid Mediations

1. If there are participants who do not have access to the required technology for virtual mediation, or they are unable to use it for a variety of reasons— including disability.
2. Some people do not have the requisite privacy at home or security settings at their place of work to participate in a mediation of a sensitive matter, and it may be impractical or impossible for them to travel to their lawyer’s offices to participate virtually (or they do not have a lawyer).
3. Some lawyers—who generally favour virtual mediations—believe that certain parties won’t be fully engaged unless the mediation is in-person.
4. There are some types of in-person mediation that can be more useful than proceeding virtually.
   For example, a neighbour dispute mediation where the mediator attends at the parties’ homes. This “site visit” approach allows the mediator to observe, firsthand, the matters in dispute (such as fences, trees, encroachments, various structures, flooding, noises, etc.). The mediator will then shuttle back and forth between the neighbouring homes to meet with the parties and their lawyers to caucus.However, this does not generally work well in the winter for obvious reasons.
5. In personal injury cases, many insurance adjusters and defence counsel find it incredibly useful to see the plaintiff in-person during a joint/plenary session. The adjuster likely never met the plaintiff before, even online, and counsel may not have met them at discovery, or only met them in a virtual setting. I also know plaintiff-side counsel who prefer that the defence participants meet their client in-person.
6. Speaking for my practice, settlement rates at virtual mediations are the same if not better, than in-person mediations. Granted, I do occasionally speak to lawyers who have a different experience, and their choice of participation may be based on that experience.
7. There are some hardcore enthusiasts who simply want to meet in person. You are not going to change their minds. Mediators can choose to either accommodate them, or not. If the other side refuses, then that is why we have hybrid mediation.

   However, the party insisting on an in-person attendance, in my opinion, should bear any additional costs of that attendance.Those requesting in-person or hybrid mediations should keep in mind that many mediators charge additional fees to leave their offices to attend in-person mediations these days.

   There are also additional charges such as room rental, food, and travel-related expenses to be factored into the cost.

In conclusion, I welcome your feedback regarding this topic (or anything else in this article, except my height)—virtually by email or phone, at an in-person networking event, or some combination of (hybrid).

If you are a lawyer or paralegal looking to appoint a mediator or arbitrator for your dispute, I am a Chartered Mediator with over 15 years of experience conducting mediations of civil disputes. As well, I am a Qualified Arbitrator who conducts both arbitrations and med-arbs.

This blog is for educational purposes only and is not intended as legal or other professional advice.

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