Written by Donald L. Swanson from Koley Jessen PC on June 10, 2025
Mediators prefer Online Dispute Resolution to In-Person Mediation, in mediations conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”).
That’s the finding from a study of mediators who served in the mediation program conducted by the U.S. Equal Employment Opportunity Commission (“EEOC”).
- The report of the study report is titled, “Equal Employment Opportunity Commission Mediators’ Perception of Remote Mediation and Comparisons to In-Person Mediation.”[Fn. 1]
Such finding is based upon surveys completed by 139 mediators.
More Specific Findings
Here are more specific findings identified in the report.
- Online mediations are more flexible than In-Person mediations—there is, for example:
- increased use of caucusing, increased sharing of important documents, significant reduction of time pressures, scheduling flexibility (including an ability to extend the time of or quickly reconvene a mediation session to maintain settlement momentum); and
- physical separation of the parties provides a safe space, increased/varied communication lanes, and a real-time ability to invite other persons such as a key decision-maker into the mediation;
- mediators adopt new tactics in Online mediations—they treat Online mediations as a new type of mediation with increased caucusing intensity not possible when In-Person, new patterns of communication, immediate private feedback to the mediator, increased use of document sharing, greater scheduling flexibility, etc.;
- most mediators see similar or better quality and value of settlements for both parties in Online mediations, compared with In-Person mediations;
- mediators observe little “Zoom fatigue”;
- power imbalance issues between the parties are minimized—Online participation has a leveling effect, with the charging party being more comfortable in a Zoom setting than In-Person;
- technology does not interfere with the overall quality and results of the mediation;
- most mediators believe they can read “body language” in Online mediations—only 25% report any issue with this;
- an “overwhelming majority of mediators” see no negative effect of Online mediations on settlement results–only a minority of mediators report any adverse effect thereon;
- mediators find Online mediations are effective across all EEOC charge bases (race, gender, age, etc.);
- as mediators gain experience in Online mediations, their evaluations of the effectiveness of Online mediations, compared to In-Person mediations, increase in favor of Online;
- Online mediators did not observe many new “tactics” used by the parties;
- an “overwhelming majority of mediators” see no negative effect of Online mediations on settlement—and only a minority of mediators report any adverse effect;
- 20% of mediators report higher settlement rates for their Online mediations, with 9% reporting lower rates, and 62% report that their settlement rate for Online are the same as In-Person; and
- independent EEOC data confirms that Online mediations have a similar settlement rate (70.9%) as In-Person (71.9%);
- mediators also report:
- no change in any tactics used to break an impasse; and
- that Online mediations are easier to use than In-Person;
- Online mediations are of shorter duration than In-Person mediations;
- access to justice is enhanced by Online mediations because of:
- increased participation by employer personnel and decision-makers and by other participants; and
- power balancing, removal of the employee’s fear of being in the same location as the employer, and related benefits to both parties.
Rings True
Each of the study’s findings ring true from my experience.
Since the beginning of the pandemic, I’ve taken and defended depositions via Zoom, tried cases via Zoom, mediated disputes via Zoom, participated in mediations as counsel for a party via Zoom, and facilitated the development of consensual plans as a Subchapter V Trustee via Zoom.
And doing such things via Zoom is now my favorite way of doing each.
Conclusion
Mediators in EEOC mediations prefer Online mediations to In-Person mediations for the many and various reasons noted above.
Such preferences should be given considerable weight in evaluating whether to do mediations Online or In-Person in other contexts.
