The Power of Prescence: From Where I Sit, It’s Time for In-Person Mediation to Resume
Mon, Nov 24th, 2025 | by Miles Mediation and Arbitration | Article | Social Share
A lawyer for whom I have mediated has a favorite expression: “What you see depends on where you sit.” In the past six to seven years, I’ve sat in and mediated 250+ mediations, virtually all involving disputes over franchise (and related) agreements. For the first three to four years, all pre-pandemic, my mediations were all in person. Lawyers and their clients, with infrequent exceptions, would come to me, or I would go to them. We’d have a mediation, we’d talk in actual rooms and hallways, kitchens, and on the way to bathrooms. And cases would settle. Not each one, but almost all, would resolve, and the ones that didn’t, again with infrequent exception, would resolve over the next few weeks.
After all, we had made progress and forged relationships as we sat together in our in-person mediations. No sense letting all that go to waste. After the day of mediation, when we arrived home, we all worked the phones to continue our progress and cases settled.
COVID’s Impact on Franchises — and on Mediation
Then, in spring 2020, everything changed. COVID-19 closed franchise units, especially in the personal care sector. Hundreds of hair salons, nail studios, gyms and Pilates centers closed. An avalanche of franchisor/franchisee claims followed. Rent relief, franchise fee relief, note payment relief. Given that almost every franchise agreement requires mediation before filing suit or requesting arbitration, lots of mediations followed. Not one was in person. The world discovered Zoom and Microsoft Teams. Those platforms allayed fear of exposure to COVID through mediation and mediations continued at a torrid pace, albeit from a distance.
Lawyers would stay in their offices (or more frequently in their home offices), clients would stay in their kitchens, cars, home offices, or wherever, I’d stay in my office, we’d multiply the breakout rooms by the number of parties we had in the mediation, and off we’d go. We’d contend with poor home Internet connections, domestic interruptions, pet care needs, and likely other conversations going on in the background.
No longer did I have opportunities for spontaneous hallway connection with parties or lawyers. The remote format didn’t allow for that. It became easier for a party to leave a mediation for a self-called recess or forever by simply turning off a camera. Parties no longer travelled to a law office with the expectation of an all-day effort at resolution. In their kitchens or cars, they fit mediation in between family chores, and attention suffered.
But did results? We all have our stories about how remote format has affected resolution, but law professor Sarah R. Cole did the research. Her article, co-written with Amanda Spangler, “Virtual Mediation: The Only Door Needed in the Multi-Door Courthouse” (Stetson Law Review, Vol. 52, 2023) concludes, based on a survey of mediation commentators, “… virtual mediation is here to stay.” As the authors point out, the advantages of virtual mediation, aside from the obvious ones (lower cost, less travel) include increased decision-maker participation, more relaxed parties who were participating from the comfort of their homes, increased business opportunities for mediators now able to mediate beyond their home jurisdictions, all with a settlement rate relatively equal to pre-pandemic in-person mediation.
In-person Mediation Has Unique Benefits
After four-plus years of virtual mediation, with all its convenience and cost-savings, and negligible effect on settlement, I’m going on record: in my experience, in-person is a richer experience in terms of the level, and intensity, of the connection between the parties, the mediator and counsel. That connection can be richer and deeper than in virtual mediation.
In my opinion, there’s no question about it. So much more information is available from real-time connections with parties and lawyers. Each side may be in different rooms, but those rooms don’t present the same boundaries as Zoom breakout rooms and the geographic reality that remote participants are sitting hundreds or thousands of miles apart. The proximity of parties to each other through in-person mediation presents so much more opportunity for connection than do their Zoom squares on a screen.
People are present for one purpose –- to resolve that dispute — in a different way than they are present in a virtual mediation. There are no distractions or task-juggling while they sit alone before their screens. Instead, they, and their lawyers, focus on what’s in front of them. And in-person participants leave their conference rooms throughout the day on multiple occasions, each one giving the mediator (not to mention the other side) the opportunity for a hallway or kitchen encounter to press a point, ask a question, explore an option. The opportunities for fruitful connection abound.
Yes, sometimes it can cost money to bring folks together for an in-person mediation but so do lost opportunities for an earlier resolution. If you’re worried about lawyers and the mediator charging for time of travel to get to and from the mediation, talk to them before. I know I don’t charge for travel time, and I expect that other mediators and lawyers will be open to similar concessions.
Choosing Virtual or In-person Mediation
So, this where I stand. Experienced franchise counsel generally have a good idea whether a case will likely resolve in mediation. Maybe counsel have worked together before, or a franchise disclosure document identifies multiple cases settled at mediation, or the issue between the parties is one that counsels’ experience tells them should be resolved in mediation. For those cases, virtual mediation should work just fine — no need to spend the money and time on in-person mediation.
But for the cases that appear intractable or present issues of first impression for the franchise system or threaten the viability/survivability of the system, both sides need all the advantages that they can possibly have. In-person is one of those “must-have” advantages in any kind of bet-the-company case. If it’s available to you, insist on it. You’ll not regret it, and if you settle your case in the hallway during a chance encounter with counsel on the other side, you’ll be pleased with your choice.
About Arthur Pressman
Since 2017, Arthur Pressman has been an independent full-time mediator and arbitrator of commercial disputes. Previously, he was an equity partner at Nixon Peabody, LLP (2003-2017, Boston), a capital partner at Buchanan Ingersoll PLLC (1997-2003, Philadelphia), and a founding partner of his own 15-lawyer firm (1973-1997, Philadelphia).