During past eight months, due to the coronavirus pandemic, mediators, lawyers and clients have experienced something once inconceivable: Almost all mediations have been conducted remotely. What have we learned from this experience so far, and how can we improve it?
What have we gained?
First and foremost, during this pandemic, JAMS neutrals have settled thousands of cases on-line. Mediators, myself included, who were skeptical about our ability to connect with parties on a screen have been proved wrong. Using speaker view on a videoconferencing platform can bring us even closer to parties than when they are seated across a conference room table. Some individual participants have reported feeling more comfortable when appearing from home than at a more formal location. Settlement rates have been at least as high as they were for in-person mediations.
Lawyers have reported that they appreciate the savings in time and expense of not having to travel (or pay for mediators’ travel) to attend mediation sessions. Remote mediation makes it more convenient for executives and insurers to participate because they can appear from their homes. In addition, lawyers and clients alike enjoy their ability to turn off their video and turn to other tasks during breaks. Scheduling is more flexible: I occasionally have held individual sessions with parties the day before a scheduled “mediation day” or followed up on a subsequent day for an hour or two.
What are the problems, and how can we fix them?
One drawback of remote mediation is the inability of participants to initiate impromptu conversations when they meet at the coffee machine or around the buffet table. If the mediator wants to move a lawyer to a breakout room for a private chat, it must be done in front of the other participants in the same breakout room. (I’ve learned to do that only after asking permission in advance by text.) The chat function on Zoom works only among those in the same breakout room, and is often is too stilted for exploring options. To circumvent this limitation, participants should obtain the cell phone numbers of the mediator and any other participants whom you may want to contact privately. Cell phone calls and texts have become almost essential to the experience.
Another issue related to remote mediation is that, although reaching an agreement in principle may not require any more time remotely than it does in person, it often takes longer to produce a written agreement, whether it be a term sheet or a complete settlement agreement, to document the deal. Although a simple agreement can be drafted via the screen-sharing function, anything complicated or controversial seems to require multiple emails and red-lined documents. This back-and-forth often occurs late in the day, when people are tired and less patient, and any changes made by other parties can be frustrating. The solution—which is obvious to me but often a hard sell to lawyers who may be reluctant to signal optimism about reaching agreement—is for the lawyer who wants to do the initial drafting to send to opposing counsel a proposed agreement, with blanks for dollar amounts and other terms that may be in dispute, and invite consultation and/or red-lining in advance of the mediation. In some cases, accountants, tax or technical advisors can be consulted in advance to iron out any complicated issues.
Because of its convenience and other practical advantages, remote mediation is likely to survive the current pandemic. Consequently, lawyers and mediators should continue to identify and try to solve problems associated with the remote experience.