Adapting to Virtual Alternative Dispute Resolution
By: Laura E. Ferret, Esq.
August 25, 2020
The current pandemic has changed the way we practice law. Courthouses have closed and shifted most hearings and trials to virtual appearances. Attorneys take virtual depositions. Many consultations and meetings between attorneys and clients are conducted virtually as well. Alternate Dispute Resolution (ADR) is no exception and is also mainly being conducted virtually through platforms like Zoom. The difference with ADR is that it is usually voluntary. Parties typically choose to participate in ADR, at their own cost, because they hope to resolve their case early and out of Court. Now that ADR is being conducted virtually, attorneys and clients alike may wonder whether it can still be an effective tool for settling their disputes. Many say that the most important rule of law is that the answer is always “it depends.” The adage applies here. There are certainly pros and cons to virtual ADR. However, parties can still be successful in settling their cases through virtual ADR, especially when they are prepared to adapt to the changes and challenges that come with working on a digital platform.
The most common form of ADR is mediations. Mediations utilize a neutral third party to facilitate a negotiation between parties involved in a legal dispute. Traditionally, mediations take place in offices with several ‘break out rooms.’ Each party will sit in a separate room with their attorney and the mediator will go back and forth between the rooms to relay facts, legal arguments, and offers for resolution provided by the other side. Since all parties initially arrive at the same location, there are often awkward ‘waiting room’ moments where highly contentious or emotional parties are forced to be in the same room while they wait to be led to their breakout rooms. Once the parties are in the breakout rooms, there can be a lot of down time while they wait for the mediator to address them. Mediations are usually scheduled for full-day or half-day sessions. During a mediation, a party may spend half of the time with the mediator and the other half waiting while the mediator speaks to the other side. The goal is that the mediator will help all parties to reach an agreement that will resolve their case by the end of the session.
A remote mediation takes place in largely the same manner. Parties and their attorneys will still have private (virtual) meeting rooms, and the mediator will still be able to go between the meeting rooms to speak to the parties separately. Virtual mediations are designed so that the parties will never interact, which avoids the waiting room dilemma mentioned above. Since parties can attend the mediation remotely, they can spend their down time as they choose while they await the mediator’s return. Another benefit of virtual mediation is that the parties and attorneys will have access to the resources available to them in their home offices that they would not usually have with them in a traditional mediation. For example, everyone will have computers and internet access available to them if they wish to independently verify or research a claim or argument made by the opposing side.
Of course, the additional use of technology comes with its challenges. The computers, internet connection, camera, and microphone can all be set up, tested, and ready to go, but the parties can and likely will face tech issues on the day of mediation. Because of this, virtual mediations will usually last longer and can often extend past their allotted time. Moreover, many believe that the mediator needs to be able to look the parties in the whites of their eyes to connect with them and facilitate compromise. Although the mediator and the parties should be able to see one another over a platform like Zoom, technological limitations may make it so that parties are calling in to the meeting rather than appearing on camera. Further, the mediators are still adapting to the technology themselves and can make mistakes in their use of the platform. Mediators can, and sometimes do, accidentally place parties in the same room, mute parties, or eject the parties from the meeting.
Nevertheless, many are finding that cases are still successfully resolving through virtual mediations. If parties come to the table in good faith, and are prepared to adapt to some technology hiccups, they can successfully reach a resolution through a remote mediation. No one knows when the current pandemic and social distancing restrictions will end. Parties who wish to mediate have the choice of waiting for the restrictions to be lifted so that they can mediate in person or attending mediation remotely. Remote mediations can avoid delay and provide answers about whether a case is headed towards settlement or trial. Attorneys at BPE law group have successfully settled many cases through remote mediations and can assist with any mediation needs you may have.
The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are facing a legal issue of any kind, get competent legal advice in your State immediately so that you can determine your best options.
