Why I’m sticking with remote mediations

Posted Thursday, November 17th, 2022 by Gregory Forman
Filed under Law Practice Management, Mediation/Alternative Dispute Resolution, Of Interest to Family Court Litigants, Of Interest to Family Law Attorneys, South Carolina Specific

Early in the COVID era, the South Carolina Supreme Court authorized mediations using video conferencing. Despite the return of relative normalcy to the operation of the court system, one has been able to conduct remote mediations ever since.  A September 21, 2021, Supreme Court order permanently authorizes mediations to be conducted via Remote Communication Technology (RCT) and Enhanced Remote Communication Technology (ERCT)—basically, what laypersons think of as Zoom or WebEx.

I’ve not conducted an in-person mediation since March 2020.  Frankly, I’m shocked anyone continues to show up in-person for mediations. While I can only speak for family court, those who conduct in-person mediations are wasting their client’s money.

Assuming the client pays an hourly rate for a domestic attorney (which is almost universal for contested cases) there are two ways remote mediations save clients money. The most obvious is that there isn’t travel time to and from the mediation.  I work in downtown Charleston and few of my nearby peer are family court mediators. Typically, I was crossing a river or heading inland to attend mediations. Prior to COVID, my clients were likely charged between 0.5 and 1.5 hours for travel time to and from the mediation.  Remote mediation means no travel time and therefore no fee incurred for travel time.

The other reason remote mediation is more cost effective is that I can do other work while the mediator is with the other side. Sometimes I use the time the mediator is with the other side to work with my client on aspects of the case (often working on discovery or reviewing/obtaining records).  However, if my client doesn’t need my attention while the mediator is with the other side, I simply remove myself from the remote mediation and work on other matters.

In the “before times,” this downtime was billed to my client. Sometimes we were doing productive work.  Often we were simply discussing relatively safe topics like sports and culture.  In before times a client was typically billed 7-9 hours for a full day mediation; now it’s more typically 3.5-5 hours.  Furthermore, I am no longer ending a late afternoon mediation by driving back to my office to address a day’s worth of mail, emails and phone calls—which made for very long days.

I’ve not found that remote mediation is less efficient or effective than in-person mediation. I know some attorneys believe in-person contact helps with difficult conversations about compromising on goals.  I find that letting the client know which goals are unrealistic prior to mediation both reduces the need for these discussions in mediation and makes the mediation more efficient.  Often these having discussions through screens reduces the emotional temperature.

In before times I’d try to efficiently use the time the mediator was with the other side to work on my client’s case but often, especially later in the day unless I was drafting an agreement, that simply wasn’t possible.  This down time was especially frustrating when the mediator would be in the other room for 90 or more minutes attempting to get the other party to be realistic.  My client was paying for unproductive time because the other party was unprepared or unreasonable. That had to be galling to my clients. With remote mediation, my client doesn’t pay for this down time.  Further, I’m not having to work into the evening to unclutter my desk and empty my inbox.

If my peer have good reason(s) for continuing to appear live for mediations, I’d love to hear them. Myself—I’m never going back to in-person mediations.