Seeing the advantage of using videoconferencing, I’m convinced that, in mediations, we’re not going to back to status quo after COVID-19.
The COVID-19 pandemic and shelter-in-place orders under which most of us have been living have changed many aspects of our lives. Although not the most significant change in the larger scheme of things, mediations will likely never be the same. The changes go beyond merely substituting video mediations for face-to-face sessions.
Acceptance of videoconferencing in mediations enables three material changes to the mediation process: (1) mediations can become more front loaded; (2) the face-to-face mediation session should diminish in importance to the mediation process; and (3) mediators can add more value to the process. Before taking up these changes, let’s look at how mediations now generally work.
Most mediations follow a well established pattern. Historically, they have centered on a face-to-face or all-hands mediation session. After submission of mediation statements, representatives of all sides show up at the mediation venue expecting (or, at least hoping) that the other side will finally see the light. When that light fails to dawn, because the parties are in such different orbits, the process breaks down. It’s important, therefore, to get the parties thinking about how to settle the case at the outset.
Invariably, I begin with a telephone conference call. This needs to accomplish more than confirm a date and start time for the mediation session, schedule submission of mediation statement whether they are to be exchanged or not. Getting a preliminary settlement dialogue going can be accomplished in telephone conference, a video conference is an even more effective tool. Videoconferencing allows the counsel and mediator to see one another and gauge their respective reactions much more closely. Videoconferencing enhances the value of these preliminary conferences.
As lawyers and mediators become more comfortable using videoconferencing capability, the mediation process can become more front-loaded. Success is less dependent on that Eureka moment at a mediation session when the parties reach an agreement. The mediator can more easily move from talking to both sides to individual discussions and back again with video than with a telephone conference. This allows the mediator at the very beginning to search for points of agreement. These discussions will likely point to issues that the mediator believes will be helpful to a resolution.