Telephone Mediation in an Age of Social Distancing: Does It Work?

In the past few weeks, many articles have appeared on the use of advanced technology for mediation when the parties are unable to be in the same room. Furthermore, many businesses are touting the advantages of various technologies to use for non-face-to-face mediation. But is all the technology really necessary, and worth the price?

Telephone Mediation

Often, the only technology really needed to conduct a non-face-to-face mediation, is a telephone with a speaker. The Persaud Law Office has conducted many mediations via telephone. Most of these mediations were between parties who lived in different cities. In one case, one of the parties was in prison. The Persaud Law Office has never used any technology, other than the telephone, in non-face-to-face mediation. As long as the telephone had a speaker, the telephone was sufficient to conduct mediation. In some of the mediations, it was necessary to send documents to the client; for this, all that was necessary was e-mail and a scanner. Sometimes, a scanner wasn’t even necessary; a lawyer or mediator would simply type a document in Microsoft Word, and e-mail the document to the client.

Does telephone mediation work? Is it more or less effective than mediation performed by other audio-visual technology?

There have been few empirical studies performed regarding the effectiveness of telephone mediation. An article in the Family Court Review found only three studies on telephone mediation. One of these studies found that 75%-85% of family law mediations conducted by telephone reached agreement. The second study found that if there was a high level of acrimony between the parties in family law cases, there was low engagement in telephone mediation, but that no other factor reduced the level of engagement in telephone mediation. The third study found that, in family law cases, when motivational interviewing techniques were conducted along with telephone mediation, there was a greater chance that the parties would reach an agreement. So, although there are a limited number of empirical studies available, the studies appear to show that:

1. Telephone mediation often results in settlement;
2. Motivational interviewing techniques appear to increase the likelihood of agreement;
3. High levels of acrimony between the parties reduce the level of engagement in mediation.

In addition to the empirical studies, there is numerous anecdotal evidence that

telephone mediation often yields positive results. In a paper for the NCAIR Conference on On-Line Dispute Resolution, Richard Granant, of the University of Maryland School of Law, reported that,

“The anecdotal data that we have been able to collect from discussions with family law mediators about their experience in mediation by telephone is that the physical and psychological distance created by the telephone reduces the amount of emotional hostility between the parties. The result is that agreement is reached in less time and the parties are not only satisfied with the result but continue to relate to each other by telephone rather than face-to-face.” 

In another article on this site, Phyllis Pollack reports that she has successfully mediated disputes over the telephone. In the experience of the Persaud Law Office, many of the mediations we have conducted by telephone have resulted in a successful settlement.

The Process of Telephone Mediation

At the Persaud Law Office, we conduct telephone mediation in a manner similar to in-person mediations. First, we notify all parties of the time of mediation. In most of our telephone mediations, some parties are physically present at the mediation site, and other parties appear by phone. For the parties appearing by phone, we obtain their telephone number, and we give them a number to call into the mediation.

At the time of the mediation, the mediator begins by explaining to all parties what the ground rules of the mediation are, as well as the relevant laws of mediation. We ask the party appearing by telephone if he agrees with, and understands, the rules, and if he agrees to mediate. In general, we do not need to obtain the signature of the party appearing by phone. But, when it is necessary to obtain a signature of a party appearing by telephone, we use e-mail.

When the mediation starts, the initiating party usually presents his case first. Then, the responding party presents his case. Attorneys will speak if necessary, and the mediator will seek to guide the parties to a resolution. If an attorney finds it necessary to speak privately with the party appearing by telephone, the attorney will ask the in-person parties to leave the room, so that attorney and client may speak privately.

Sometimes, a mediator wishes to have a private consultation with the party appearing by telephone without the other party present. In this case, the mediator asks all in-person parties to leave the room, and the mediator and the party speak by telephone. If necessary, the attorneys, and the mediator, will e-mail documents to the client who is appearing by telephone.

Telephone Mediation – An Effective Idea Worth Trying

From the foregoing, those familiar with mediation can see that the process of telephone mediation is very similar to an in-person mediation. The few studies that have been done on telephone mediation, as well as the anecdotal evidence from those with experience, indicate that telephone mediation is effective.

So, to anyone who is considering spending large amounts of money on technology to be used in non-face-to-face mediation, please consider: Will the money spent really benefit attorneys and clients? Or will it only benefit the businesses selling the equipment? In these times of economic difficulty, it would be most unwise to spend large sums of money on unnecessary technology.

                       

Kyle Persaud

Attorney Kyle Persaud is the founder of Persaud Law Office based in Bartlesville, OK. Mr. Persaud practices in a number of legal areas including appellate law, civil law, family law, estate planning/probate law, and immigration law. He holds a B.A. from Oklahoma Wesleyan University and a J.D. from the University of… MORE >