The rapid rise of virtual mediations
Mediation is an essential component of civil litigation. Most courts have for some time imposed a requirement that litigants participate in some form of alternative dispute resolution, and mediation plays a prominent role in fulfilling those requirements. Mediation is not only a ubiquitous experience; it also leads to the resolution of a significant portion of civil cases.
Cue March 2020. Enter our response to the novel coronavirus, which has quickly become a new or different normal. Of course, the COVID-19 response has dramatically affected all of us in personal ways—physical, social and financial. Your experience may approach the profound, as current circumstances provide an opportunity for us to question many of our assumptions about life. Regardless, on a practical level, the immediate need to stay home and practice social distancing has changed the way we work.
The growth of video conferencing in mediation has been recent and rapid. While there is no substitute for the “presence” and human interaction that comes with face-to-face communications, virtual mediations provide a number of benefits. Participants do not have to travel, whether across town or across the country, so it will be easier to have the “right” people involved in the mediation. Clients and insurance company adjusters can communicate real time by video with counsel and the mediator. And while the mediator is working with the other party, participants can use that “down time” more effectively to work on other matters.
More importantly, virtual mediations work. With an experienced mediator, the technical aspects of a virtual mediation can be easily managed. Participants receive an invitation with an internet link and a password for the scheduled date and time. The mediator will set up secure “breakout rooms,” much like an in-person mediation. Mediation preparation can include a “tech” session for counsel and clients to make sure the parties are comfortable with the virtual mediation platform that will be used, such as Zoom, .Ground rules unique to a virtual mediation—like the need for secure connections, lack of interruption and privacy—should be explained and, as is the case with our Virtual Mediation Guidelines, may be required. To see how simple the use of a mediation using video conferencing can be, we provide a number of tips in Participating in a Virtual Mediation with Zoom.
Admittedly, virtual mediations lack some of the features of an in-person mediation. For instance, participants may not be as vested in a remote process as they otherwise might if they had to commit to an entire day with their lawyers in a conference room. Or they may not feel they have “had their day in court,” often necessary to move a dispute forward to resolution. But our experience shows that these factors may not be correlate to whether a mediation results in settlement. Rather, the keys to a successful virtual mediation are rooted in, first, an experienced, skillful mediator and, second, all participants’ commitments to approach a virtual mediation with the same focus and attention that they would give to a face-to-face mediation.
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