The End Of In-Person Mediations
Author(s): Darcy R. Merkur
April 23, 2023
The end of in-person mediations is near due to the ease, convenience and cost-effective nature of virtual mediations.
Most personal injury lawsuits are resolved without the need for a trial and the vast majority are resolved through the mediation process.
What is mediation?
Mediation is a great opportunity to have all parties come together to discuss a claim and attempt to come to an agreement on a suitable resolution. Mediations involve the assistance of an experienced and trained mediator that helps the parties communicate with each other and work towards a resolution.
Pre-covid mediations were almost always conducted in-person. The in-person mediation process allowed everyone to “read the room” and obtain a better sense of the perspectives being brought forward by the various parties involved.
Mediations can often resemble a poker game, and with so much on the line, it is better to play your cards in-person across a table rather than virtually over the internet.
That said, in-person mediations are a logistical nightmare. Meeting venues are almost never convenient to everyone. Moreover, personal injury clients often face major mobility issues rendering travel to and from intimidating business settings (like downtown Toronto) both challenging and frightening. Add to that a constraint on funds to travel to the mediation – with finances regularly being an issue for those who have been seriously injured in an accident — and it is easy to see why in-person mediations become very stressful on personal injury claimants.
Covid shifted in-person mediations to virtual mediations. Initially, virtual mediations were choppy while the public at large became more accustomed to working, learning and meeting online. But, over time, the world became more familiar with virtual meetings and the technology improved, resulting in virtual mediations becoming simple and smooth.
The bottom line is that the convenience and efficiency associated with virtual mediations substantially outweighs the benefits of being able to “play your cards” in-person. Allowing claimants to participate from the comfort of their own homes substantially reduces anxiety about the mediation itself. Of course, where appropriate, the claimant can arrange to physically be with their lawyer for their virtual mediation.
Are there circumstances that still warrant an in-person mediation?
The circumstances that might seem to best warrant an in-person mediation are often the very same circumstances that are best suited towards a virtual mediation. For example, mediations with a dozen different lawyers and parties involved may be better suited to a virtual mediation in order to avoid logistical complications associated with unexpected travel or scheduling changes.
Virtual mediations will continue in the future
While the examination for discovery process may return to an in-person process over time, I doubt mediations will do the same.
Unlike mediation, the discovery process is designed to gather evidence under oath and lawyers generally prefer to elicit evidence in-person to better assess the witness.
No doubt, some degree of effective advocacy is lost in the course of virtual mediations. You simply can’t make the same impression on someone online as you can in-person. But, nevertheless, the efficiency of a virtual mediation trumps all other considerations.
I would love to hear from mediators and other counsel about your thoughts on when an in-person mediation may still be warranted. I would also welcome opinions on when and/or if you think the mediation process will return to a predominantly in-person process.
Darcy Merkur is a highly regarded Ontario trauma lawyer helping accident victims such as pedestrians, cyclists and motorists, who have sustained catastrophic injuries.
Darcy is the first lawyer in Canada to be qualified as a Certified Brain Injury Specialist by the Brain Injury Association of America. In addition, Darcy has been recognized as a Certified Specialist in Civil Litigation by the Law Society of Ontario, is listed in peer-reviewed publications – Lexpert® and The Best Lawyers™ in Canada, is ranked AV Preeminent® in Martindale-Hubbell ® and is a partner at Thomson Rogers, one of Ontario’s Top 10 Personal Injury Law Firms as selected by Canadian Lawyer Magazine, and ranked one of the Best Law Firms in Canada by The Globe and Mail.
Darcy can be reached at 416-868-3176 or by EMAIL.