Virtual mediation: here to stay
“Adapting on the fly” is not a phrase often associated with lawyers. Yet, in a pandemic world where the legal industry faced unprecedented court closures, trial calendar continuances, and interruptions in civil litigation practices, the challenge of effectively managing mediation and other dispute resolution vehicles that kept most of the world behind closed doors, was met head-on and conquered by attorneys, courts, clients, and dispute resolution specialists.
The question now, reflecting on the effectiveness of virtual mediation as many of those doors are opening back up: is virtual mediation here to stay? The answer, based on the present landscape, appears to be a resounding “yes”.
While there may frequently be cases where face-to-face negotiations will remain an important and relevant component in dispute resolution, virtual mediations offer mediators, parties, and civil litigators the opportunity to expand the circumstances under which secure video mediations are reasonable, effective, and helpful.
Prior to the pandemic, remote mediations typically occurred under limited scenarios, such as when the parties, their attorneys and mediator were too geographically distanced for the travel costs to justify the effort. In today’s post-pandemic civil litigation climate, however, remote mediations will likely remain the rule rather than the exception, with technologically adept mediators stepping in to provide parties with a chance to settle their civil disputes and move on to more demanding business needs.
Remote mediators, and the sessions they preside over, have evolved considerably over the past year, initially out of necessity and, more recently, based upon results. Mediators have compiled updated terms incorporating certain unique features of remote mediation, working to ensure secure connections and confidential discussions, while enabling the digital execution of settlement agreements and any other documents needed to bring disputes to a negotiated end.
Using the remote option, even after the actual mediation conference has ended, if the parties remain interested in securing a settlement, mediators are able to remain virtually engaged in the negotiations.
By the very nature of the remote setting, mediators have also taken on a more proactive role, making sure not only that the participants are actively engaged as needed, but also guiding them through what, for most of them, is unchartered territory.
Home comforts
As a result of mediators, counsel, and clients adjusting their professional lives to accommodate a work-from-home routine, mediations can now be conducted remotely, with all the participants in their own comfort zones.
Scheduling no longer needs to take travel into consideration thereby freeing up the participants to not only be available for the mediation conference itself but also the pre-mediation planning, both internally and, in certain circumstances, with the mediator.
Perhaps most importantly, the conflict-driven vitriol that can be a disruptive factor during an in-person mediation is simply not possible during a virtual mediation. Remote experiences over the past year-plus reveal that calmer, less agitated parties lead to quieter, more productive settlement negotiations.
Rather than dealing with the stress and anxiety associated with parties knowing they’ll be in the same room as their adversaries, the mediator is now able to preside over a calmer playing field, more effectively focusing the participants on the substantive issues of the dispute and its potential resolution.
Of course, reliability and security remain essential components of effective virtual mediation and present challenges to remote mediators and their services. One very positive outcome after a year of virtual meetings, including mediations, is that meeting technology has been greatly enhanced to accommodate the security and access needed for a comfortable virtual mediation setting.
Dedicated virtual mediation platforms such as MediationSuites.com provide mediators with a one-stop shop for setting up and hosting their virtual mediations. Secure caucus rooms are arranged in advance, invitations and passwords shared with the participants, and everyone involved can arrange an advanced look at the virtual setup in order to make themselves comfortable.
In addition to dedicated mediation applications, a number of third-party providers, such as court reporting services that were already set up for remote video depositions, are now offering virtual mediation services that incorporate established virtual meeting and electronic signature services.
As the old saying goes, necessity is the mother of invention, and in today’s post-COVID-19 environment, virtual mediations, which began because there was no other choice, are now on the cusp of becoming the “new norm” for the foreseeable future for alternative dispute resolution.
They will continue to provide an attractive option to all involved in civil litigation, from the courts looking to reduce case volume to mediators looking to fill the void, to the parties (and their litigation counsel) looking to help their businesses focus on the issues at hand.
Indeed, virtual mediation has earned the right to be regarded as an efficient and secure means of dispute resolution. As technology continues to improve, remote mediation should only grow to become the most cost-efficient, reliable and dependable means of dispute resolution available to litigators and their clients.
David Friedland is a co-founder at Friedland Vining. He can be contacted at: dkf@friedlandvining.com
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