When the legal profession began to experience the impact of the COVID-19 pandemic, I wondered specifically how it would affect alternative dispute resolution. I was not so concerned about arbitration. There was precedence in practice and in the courts for telephone conferences, videotaped depositions and video broadcasts of appellate arguments, among other things. But mediation—in my mind—presented unique issues.
Initially, I was skeptical that successful mediation could be achieved outside of an in-person setting. A skilled mediator must build rapport and trust with counsel and the parties. The mediator must also be able to read the room in terms of interests, chemistry and “atmospherics.” How was I going to be able to give clients or counsel “the eye” or gently tap them with my foot under the table when something that they were saying or conveying through body language was not conducive to amicable resolution and might upend the mediation? How would I speak privately with a participant in the hall outside the mediation room? After settling thousands of cases in my 20-plus years in the appellate court in Manhattan and at JAMS, I was not sure how mediation would, or could, adapt to the use of virtual proceedings.
But based on my recent personal experience, I have concluded that virtual mediation works very well indeed. In fact, I have concluded that virtual mediation is even more valuable in meeting parties’ needs in the current world.
Increased Conflict and Legally Unanticipated Issues
As we have seen, conflicts, and the need to enlist legal assistance to resolve them, have not abated during the ongoing COVID-19 pandemic. Indeed, in practice areas such as employment, real estate, commercial and matrimonial law, we have seen even more disputes emerge, as well as many new and unanticipated issues. These issues involve vaccination mandates; remote work arrangements; government-imposed business closures; transportation, labor and supply chain difficulties; business interruption and force majeure clauses in contracts; and the COVID-impacted valuation of marital assets.
Many of these unprecedented issues were caused by the pandemic. Thus, we find ourselves in a situation where the application of existing legal guidance and/or industry practice to assist in resolving conflicts may be unavailable, inappropriate or even incorrect. As a result, the ability to effectively counsel clients on risk and cost has been diminished.
Additionally, court backlogs are now worse than ever. The conflicts that parties to a dispute are experiencing have taken an enormous economic and personal toll on them. The prospect of a timely resolution of conflict through the court system is dim.
Enhanced Benefits of Mediation Now
Mediation has always been a great alternative to litigation, which is often adversarial. It is an efficient, cost-effective dispute resolution process uniquely focused on client interests and needs. Cooperation, the foundation of the mediation process, creates greater value for its participants to ultimately share. With the assistance of counsel, clients are empowered to tailor make a solution to their joint conflict.
Added expense and delay are in no one’s best interests, especially now. The combination of court backlogs and the failure of parties to a dispute to seek alternatives to resolve their conflict is inhibiting their economic and personal recoveries, and is creating additional stressors. Through mediation, parties have the opportunity to resolve their dispute in a rational, reliable, participatory and cost-effective process that will allow them to successfully resume their business and personal lives.
The novelty of many of the issues that people are currently facing invites creative problem-solving by experienced counsel. This is an exciting and dynamic time for counsel who genuinely enjoy thinking about and applying the law to situations faced by their clients. Mediation is the ideal forum to discuss and resolve such conflicts, because it will likely be years before a current conflict gets resolved in court and courts and legislatures provide guidance on emerging novel issues where none exists today.
Multiple Methods of Mediation
With the advent of virtual mediation, there are more choices and possibilities for conducting mediations. In addition to in person mediation, parties now have the choice to attend virtually or in a hybrid format.
If all participants are fully vaccinated and provide verification, many JAMS mediators will conduct an in-person mediation.
Participants to a mediation who are fully vaccinated may choose to appear in person, while other participants may choose to appear remotely. In this case, the mediation would be conducted as a hybrid session. The reason why someone may choose not to appear in person need not be disclosed. Additionally, those not appearing in person have the choice whether or not they want to be seen on the screen in a mediation room, while retaining their ability to see and hear the proceedings. Hybrid sessions are popular because they afford participants the opportunity to fully participate in a variety of ways.
An unanticipated benefit of hybrid mediation is that higher-level decision-makers, who might not have the time to travel to an in-person session, can still participate in as much or as little of the mediation session as they choose. Giving decision-makers the ability to appear remotely may make them more likely to participate, which can greatly increase the likelihood of a successful mediation.
Finally, a mediation may be conducted completely virtually. While I have successfully mediated cases entirely by telephone, this is not typical. Currently, the majority of mediations are virtual. Typically, in a virtual mediation, participants are sent an invitation link to enter the mediation via a videoconferencing platform. JAMS personnel communicate technical information about the session to the participants beforehand. They are available to train participants and answer questions before a session, and they remain available to assist participants should an issue arise during a session.
Many participants prefer to engage in mediation from the comfort of their homes or offices. Additionally, in both hybrid and virtual mediations, there is very little time lost to delay. Participants are usually not late, and they can be easily reached when the mediator wishes to caucus with them. Participants can shift their attention to other work or tasks while the mediator is caucusing with others, allowing parties to use their time more efficiently and engendering goodwill by reducing downtime.
Mediation has adapted brilliantly to the use of virtual proceedings and, in doing so, now offers many benefits not previously available.