Its good to talk... Can mediation work using email alone?

As a mediator I am always asked why mediation cannot be conducted via email.

I understand there are some positives to conducting mediation via email, such as

• ·    easier scheduling;
• ·        parties from other states, or even countries, can participate without travel or time zone constraints;
• ·        parties can take time to draft an appropriate and more reasoned response; and
• ·        parties can easily find information from prior “conversations.”

From a personal prospective and my professional experience in mediations, mediating via email is problematic.
Of course, I use email for communicating to clients at the same time in terms of scheduling, the initial forms, and letters, and sending drafts of agreements.

To actually have substantive discussions though, mediation via email has not proven productive.

WHY….

A lack of nuance and intent.

Reading words on a screen without the context of the tone of voice or facial expression can be very off-putting.

Some phrases can seem harsh and can convey a dismissive or angry tone that the person did not intend.

We are all guilty of reading a text or email in the frame of mind we are in, rather than in the frame on mind the sender is sending it in.

On the other hand, a person might be more prone to email something provocative that they would never say in person.

Even if the mediator is willing to try to intervene and help the discussion, by the time the mediator enters the conversation, the email chain could have gone on for hours — and without any attempt at a mutual understanding, the damage that could derail the mediation has already been done. 

Partial or non-responses are given

In an email, it’s easy to respond only to those comments/requests you want to and ignore what you do not want to answer. I have read email chains where the parties seem to be having completely different discussions.

An email can begin with a party raising three points but the response only references point 2. The reply then ignores the response to point 2 and brings up point 4, and so on and so on...

The responses are not in real-time.

While there is a benefit to being able to ponder a statement and then craft a response, delay adds to the frustration of the other party.

This can make a difficult issue even more difficult to resolve, especially if follow-up emails are sent demanding a response

I also believe that in any form of mediation, an immediate reaction from the heart can be quite powerful and may not be substantially conveyed in an email that has been reviewed and edited for perfection.   

In the long run, it costs you more in fees.

It takes billable time for your mediator to go through the email chains and try to piece together what, if anything, has been resolved. Invariably, there will be a point that is missed or a response that is not clear when the mediator summarises the numerous emails.

That can then start the whole process over again.
If there are issues that come up in between meetings, I am more in favour of scheduling a phone call. Then, when necessary, I can intervene and be sure that everyone understands one another and the agreements that are being made.

Acknowledgement Clare Piro Attorney and Mediator