Have an Upcoming Virtual Mediation? Three Strategies for a More Effective Session

Mon, Aug 25th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By Bunnie Todd

Virtual mediations exploded during the COVID-19 pandemic. While COVID-19 is mostly gone, virtual mediations are here to stay; some mediators report that they are conducting nearly 70% of their mediations virtually. Many governmental organizations, like the EEOC, are conducting most of their mediations virtually due, in part, to the success of virtual mediations and the resounding approval of the participants.

As a mediator, I was resistant to the idea of virtual mediation at the start of the pandemic. No surprise there — as human beings we tend to resist change even though we have such a great ability to adapt to our environment. However, what was once an uncomfortable forum for me quickly became a godsend.

Now, this forum allows me to serve attorneys in Georgia, North Carolina, South Carolina, and throughout Colorado, as well as in Colorado Springs, Colorado, where I reside. While I am excited to mediate in person in Colorado, I will never give up virtual mediation — and over the last five years, have learned how to ensure my virtual mediations are as effective and beneficial for the parties and counsel as in-person ones.

Here are three strategies to help set the stage for a successful virtual mediation:

Connect and Communicate Before the Mediation

Some mediators and parties make the mistake of becoming lax in pre-mediation preparation communication before a virtual mediation. Pre-mediation communication, whether in a call or email exchange of materials remains extremely important — if not more important — in virtual mediation. This is true regardless of the value or complexity of the case.

In fact, there is some information the mediator should be collecting and may not ever obtain if not collected before virtual mediation. Not obtaining certain information might make your mediation more difficult at best and at worst, hurt your chances of settlement. If you’re an attorney and your mediator is not communicating with you before the mediation, seek out the mediator and provide him or her with pertinent information that the mediator might not necessarily learn or pick up on in meditation. You may also want to share the same information with the opposing counsel or give your mediator permission to share it with the opposing counsel pre-mediation.

For example, it’s helpful to let the mediator know if you have a “difficult” client or adjuster or if you are struggling with a specific case issue that you might not want to share in front of the client. A mediator may have difficulty figuring this out if you do not educate your mediator about these issues pre-mediation, especially if the parties are not very demonstrative or forthcoming even in their private virtual rooms.

While you should try to learn such information prior to any type of mediation, mediating in person gives you opportunities to discuss such issues where virtual mediation will not. (For example, at an in-person mediation if you forgot to disclose something pre-mediation, there are physical places — like the break room or hallway—where you can speak with your mediator privately.) In a virtual mediation, the mediator can of course pull an attorney into a virtual room for a private one-on-one meeting, but it can be abrupt for the person remaining (often the client or adjuster) and raise doubts or concerns with that person. Your best bet is to give this information to the mediator premeditation for virtual mediations. (In a pinch, you can text your mediator; more about that in a bit.)

Don’t Let Efficiency Make the Mediation Less Effective

No doubt that virtual mediation is efficient in terms of time and cost. But we all must be careful; parties sometimes want to “cut to the chase” and not let the mediation take its natural course.  As an attorney, you can’t rush the strategic plans and emotional dynamics of the parties without hurting your end game or at least making the mediation more painful (and often longer) than it needs to be for everyone. I find that in virtual mediation, some parties tend to be even more impatient in this regard. Let the mediation play out.

As for the mediator, we spend a lot of time when we are mediating in person going between rooms. While it adds more time to the mediation, this allows the mediator time to think about his or her strategy to help the parties as well as take time to compose himself or herself before when they enter each party’s room. In a virtual mediation, the ease in which a mediator can change between virtual rooms can be a pitfall. If you’re the mediator, remember to take time, even if for a few minutes, to assess these things.

Use Your Phone to Stay in Contact

Cell phones are used both for in-person and virtual mediations, of course. You can text your mediator or your mediator can text you.

Where I find this especially helpful in virtual mediation is when I want to enter the virtual room. Zoom, to my chagrin, does not have a bell or audible alert that announces when I am entering a virtual room. If the parties prefer, I will send a text to the attorney that I would like to enter the room. This allows me to check if they are ready for me. (While I can message one room privately via Zoom, I find it cumbersome and often the parties are not looking at the computer screen whereas phones are typically more accessible and in use by the parties.)

By the same token, if you missed communicating something pre-mediation or an issue arises during mediation that you want to tell your mediator out of earshot of your client or adjuster, you can text the mediator. While it’s best to exchange such information pre-mediation (as discussed above), texting can be a valuable fallback. The takeaway? Always exchange cell phone numbers pre-mediation.

Obtaining relevant information ahead of time, letting the mediation unfold at its own pace, and using your phone to stay in touch with the mediator and counsel can all help you have more successful virtual mediations. And for a deeper dive into virtual mediations, consider my CLE course, Old School Mediation Strategies in the Digital Age.

About Bunnie Todd

Elizabeth “Bunnie” Todd has more than 15 years of experience as a mediator and arbitrator and more than 30 years of experience litigating civil cases. Her mediation practice includes catastrophic personal injury cases (including brain injury and amputations); construction defect cases employment and worker’s compensation matters; medical malpractice cases; premises liability cases; and product liability cases. She also handles inland marine loss and damage cases; insurance coverage disputes; and large and multiparty subrogation and recovery cases; and property boundary and eminent domain cases.