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Mediating via Emails

April 7, 2021  | 
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{3 minutes to read} I understand that there are some mediators in favor of mediation via email. Those that I have encountered are conducting commercial or other multi-party mediations. The positive aspects include: 

  • 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.”

It’s been my experience in family mediations, though, that 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.

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 seem harsh and can convey a dismissive or angry tone that the person did not intend. 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 family 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 summarizes 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 favor 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. 

Clare Piro Attorney and Mediator

Attorney & Mediator
500 Mamaroneck Avenue | Suite 320
Harrison, NY 10528
Tel: 914.946.0848

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