“Most civil and commercial private mediators and ADR providers offer their clients a binary choice between a half day mediation and a full day mediation as a standard offering, often on a flat rate with one or two hours of prep time, a preliminary call with counsel and open ended follow up as part of the flat fee. Most such mediations are convened and organized to have all the parties and counsel arrive at the same time. Since the onset of the pandemic and the various shut down orders, the use of online dispute resolution has increased exponentially, usually conducted through videoconferencing using Zoom and similar platforms.
This broad use of videoconferencing around the world has lead to a phenomenon referred to as Zoom fatigue (see https://ideas.ted.com/zoom-fatigue-is-real-heres-why-video-calls-are-so-draining/). Psychologists attribute this fatigue to the higher levels of concentration caused by staring at a computer screen for long periods, often looking at multiple images of participants on the screen, leading to eye strain and sensory overload. All of this is exacerbated in mediation, given the emotions caused by conflict and the high levels of interactivity between the mediator and the parties as they move through trust building into often difficult conversations to bridge the gaps between parties. Given the medium, mediators must also be thinking about eye contact and reading facial expressions, which is second nature in a face to face conversation but which takes effort in a videoconference. Exhausted mediators and parties cannot do their best work. Good, durable settlements and settlement agreements require careful attention…”