Virtual Mediation Offers Nothing to Fear

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When it comes to mediation, some in-house counsel and litigation attorneys have historically been hesitant to embrace innovative technology such as videoconferencing solutions. This is understandable, since lawyers are protective of their clients’ privacy and security, and the human interaction we all experience at in-person meetings is commonly preferable to virtual interaction over Zoom.

However, the COVID-19 pandemic has forced everyone inside and outside the legal profession to come to terms with using virtual applications to conduct business. The present circumstances have forced in-house counsel, litigation attorneys, and others to accept the necessity of engaging in virtual mediation to resolve cases.

Prior to COVID-19, one of my three-year goals as Senior Vice President at the American Arbitration Association (AAA) and Executive Director of AAA Mediation.org was to introduce more offerings of technology-based mediation training. Since the beginning of the pandemic, I have become responsible for developing no less than six training programs to assist attorneys with the delivery and implementation of the AAA’s virtual mediation platform and services.

When COVID-19 first hit, courthouses closed, but virtual alternative dispute resolution (ADR) platforms like the AAA’s continued to operate and increase caseloads. Even some bankruptcy court judges are approaching virtual ADR platforms to carry out court-ordered mediation digitally, in an effort to reduce their mounting caseloads.

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The rising interest in, and use of, virtual mediation will likely continue to increase—perhaps to the point where in-person mediation may become much less commonplace even after the development of a vaccine for COVID-19. The convenience of not having to travel to court to participate in mediation, while hearing and seeing parties in different states, is catching on—and many courts are taking steps that widen their embrace of videoconferencing technology. For example, the Superior Court of California for the County of Riverside has issued protocols mandating that videoconferencing be utilized for all family court matters going forward in the near term, but not for general and civil court proceedings. Meanwhile, the Superior Court of California for the County of San Diego initiated rules requiring that all hearings, including discovery and motion hearings, will be conducted via videoconference; only trials will take place in person there.

Mediation via Videoconference is Here to Stay

Whether in-house counsel and litigation attorneys prefer virtual mediation to in-person mediation, or vice versa, the virtual process is not only here to stay, but becoming more accepted as the default option for resolving cases. Legal professionals must enhance their proficiency with the videoconferencing solutions which enable virtual mediation, and with the medium of online mediation itself.

Think of it this way—virtual mediation offers the same benefits as in-person mediation, including the requirement that lawyers representing both sides agree on third-party mediators who will hear the case and possess the necessary experience and expertise. The settlement information remains confidential. The other mediation process particulars remain the same. The only difference is that nobody is in the same room.

According to court administrative offices around the country, between 80% and 85% of all cases achieve a durable conclusion through mediation. Embracing videoconferencing solutions which enable virtual mediation doesn’t change this—as long as clients involved in disputes are emotionally and mentally prepared to resolve their cases through mediation, and are willing to adhere to the settlements reached by the mediators hearing their cases, then virtual mediation can help bring their claims to an equitable conclusion.

One of the parties in a case for which we recently facilitated virtual mediation provided the following feedback: “I would only observe that once on the call, it is faster and more efficient to use Zoom. There is no travel. No room costs. And each party has a separate, secure room to discuss their case. It also allows experts and others to attend for a few minutes without losing the entire day. The screens are so good that you can see body gestures and facial expressions with accurate clarity. It is my view that will become the standard way of doing ADR within six months.”

Don’t fight change. After all, I can remember a time in the early 1990s when many in-house counsel and litigation attorneys were hesitant to embrace mediation itself!

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