Remote Mediation – The Times They Are A-Changin’

08.03.2020

Everyone knows you can’t teach an old dog new tricks. But everyone may be wrong. The novel coronavirus and the need for social distancing have taught us that we are capable of learning new ways to transact business. Even those of us in the legal profession. We are telecommuting, attending hearings remotely, and Zooming (with or without commensurate grooming). The need to practice law in a virtual environment has given rise to another recent technological fix – remote mediation.

Mediation is a key component of ADR or Alternative Dispute Resolution. It offers parties an opportunity to resolve their legal disputes without litigation. The benefits of mediation as a form of ADR are well-established—the most important being substantial savings of both time and expense. For this reason, mediation is always encouraged, and in many jurisdictions, mandated in civil court proceedings. 

Over the past months, with stay-at-home orders in effect throughout the country, attorneys accustomed to commuting to their offices discovered that they could practice law effectively from the comfort of their homes. A more surprising discovery for many was that they could actually participate in court proceedings remotely as well. With judges, attorneys, parties and witnesses similarly confined, the nation’s judicial system and its participants have mastered the technological skills to conduct hearings, depositions and even trials on a virtual basis, without the need to appear at the courthouse or the law office.

The Benefits of Remote Mediation:

A potential significant advantage of remote mediation is the elimination of travel time and expense. Removing the requirement of a physical mediation site reduces costs for the parties, their counsel, and the mediator. Coordinating the schedules of multiple parties in different parts of the county becomes far easier, so the mediation sessions can take place sooner without delay.

Another potential advantage of remote mediation is better attendance. For mediation to be effective, the final decision makers must be accessible. Decision makers often find the burden of physical participation too demanding and choose to participate intermittently by phone (or not at all). Remote mediation eliminates this barrier and encourages the decision maker to stay involved throughout the mediation process. This level of involvement can lead to faster and more favorable results. 

Thankfully, technology has kept up with our need to host remote meetings. Remote mediation is facilitated through a range of platforms, most of which allow parties to move seamlessly between a “public” meeting room and secure “breakout” rooms to confer in private. When breakout time is needed for consultation, platforms such as Zoom, Microsoft Teams, WebEx, and GoToMeeting all offer concurrent chat rooms with controllable access. Virtual chat rooms (when properly set up) provide the benefits of a physical breakout room without the risk of being overheard. 

Finally, anecdotal evidence suggests that parties in virtual proceedings tend to act in a more conciliatory and civilized fashion when forced to sit in the same room together. Storming out of a mediation session that is being conducted by videoconference just doesn’t have the same impact.

On the Other Hand:

Skeptics may argue that the absence of the physical and emotional aspects of the process make remote mediation less effective. The body language “read’ during a negotiation is reduced, if not eliminated; the nuance is lost. For some, the ability to negotiate a compromise is hampered by the decorum of the computer screen. 

Others may contend that mediation is less likely to lead to a settlement when the emotional and physical investment of a face-to-face meeting is no longer required. Logging off is an easy way to abandon or terminate a mediation. In contrast, parties who spend hours together in close physical quarters may be more likely to “stick it out” until a settlement is reach.

Though there may be valid arguments against the use of remote mediation in some cases, it appears our battle with coronavirus may wage on many more months. The pandemic will force attorneys to rely on “new tricks” in order to serve the needs of their litigation clients. As legal disputes mount and court proceedings are further delayed, the value of mediation as an ADR tool – and a remote option - is likely to increase.