As we slowly, haltingly emerge from the depths of the pandemic, we are starting to assess whether and how our lives will be forever changed. One of the most profound changes may well be the increase in opportunities, post-pandemic, for working from home, as employers discovered that home workers maintained and often increased their productivity.
A key to the success of working from home was the acceptance and adoption of virtual meeting platforms, most notably Zoom.
The alternative dispute resolution (ADR) world, consisting of both mediations and arbitrations, likewise experienced a surge in acceptance and adoption of virtual meeting platforms.
David E. Jones, Creighton 1987, provides mediation and arbitration services through Resolute Systems, L.L.C., Milwaukee. Previously he served as a federal magistrate judge in the Eastern District of Wisconsin, a partner in the Madison office of Perkins Coie, and an assistant U.S. attorney in the Western District of Wisconsin.
This acceptance and adoption would not have happened if virtual platforms adversely affected success rates. The few studies comparing success rates of in-person versus virtual mediations conclude success rates for the two methods are roughly equivalent. My own experience, having conducted over a score of virtual mediations and talking to other mediators and arbitrators across the country, accords with this consensus.
Thus, virtual has emerged as more than a necessary expedient – it has proved to be a productive and attractive alternative. Accordingly, mediators and arbitrators in the post-pandemic world will need to remain comfortable and conversant with virtual platforms.
In this aticle, I’ll discuss the logistical imperatives that virtual platforms entail, as well as their pros and cons.
Working Out the Logistics
Without question, virtual mediations and arbitrations require more planning than an in-person proceeding.
These logistical issues need to be addressed as early as possible. The choice of platform must be made (at this point, that choice is almost always Zoom), and lawyers and their clients should be offered an opportunity for a dry run. Caucus or breakout rooms need to be set up within the platform, and there should be a plan dealing with a platform crash (rare) or a participant disconnecting or experiencing device problems (happens all the time).
Early on, I adopted the practice of getting text numbers from the lawyers or an email address that they would actively monitor through the day. This provided an unobtrusive means of communicating if there were any platform problems. It also enabled me to let lawyers know when I was finishing up with the other party’s caucus and about to return to them. This in turn allowed lawyers and clients to engage in productive activity while I caucused with the other side, yet have time to refocus before I came back into their caucus room. Finally, I would always text to see if a party was ready before entering their caucus room or if they needed additional time.
Document sharing can be a little tricky, so it’s best to have key documents already in your possession prior to the proceeding. This is especially critical for arbitrations, where use of document exhibits plays a larger role than in mediations. Nevertheless, if you can’t get document sharing to work on your platform and you need to see a document, you can always have the lawyers email a PDF.
A mediator will also need to talk to counsel about how any settlement will be memorialized. Under Wis. Stat. section 807.05, parties need to memorialize any settlement in a writing that contains all material terms. This is easy to do with an in-person mediation – simply have the hosting lawyers draft a settlement memorandum with all the material terms and have counsel sign.
For virtual mediations, my practice has been to send an email to counsel that contains all materials terms, recognizes that more formal settlement documentation will follow, and states that the email is sufficiently detailed to be binding under section 807.05. I then have counsel confirm and agree to be bound on behalf of their clients through a reply-all response, so that everyone has a record of acceptance. Yes, emails satisfy section 807.05.1
Pros of Virtual ADR
Scheduling a virtual mediation or arbitration is often far easier than an in-person session, particularly if the parties are from different states.
It’s also easier to get insurance adjusters to participate throughout the day, instead of phoning in at the end of a grueling session to give a final thumbs up or down. Indeed, having the adjusters privy to and visibly participating in all the discussions about strengths and weaknesses has proved helpful in encouraging a more generous view of what constitutes an acceptable settlement number.
Parties who are newcomers to litigation will often be more comfortable in a virtual setting. It’s easy for us to overlook how intimidating it can be for regular folks to be in the office of opposing counsel or a courthouse conference room. Ideally, the clients are at least in their lawyer’s office, but I’ve had good outcomes when they remain at home, though with some caveats discussed below.
Costs are also lower on a virtual platform. Not only does virtual eliminate travel, it also provides an opportunity for lawyers and clients to preform productive work during the frequent long periods when the mediator is working with the other side. Again, this positive attribute can have a downside.
A virtual setting can also provide a critical distance barrier. In some litigation, there is such personal animosity that even the sight of the other party will lead to non-productive outbursts or confrontations. There may also be safety concerns in certain domestic or other highly emotional contexts. Virtual diminishes these distractions so that the parties can focus on putting their past in the past.
Cons of Virtual ADR
All of us have experienced a variation of the following scenario: after a long day of discussion, the parties stepped out of their caucus rooms, sat down together, and worked out their dispute. This can happen virtually, as long as the mediator has deft platform skills, but it is far less likely to be suggested or to be successful than in an in-person setting.
The reason virtual is inferior in this scenario illustrates virtual’s biggest flaw: the loss of personal interaction. A wise mediator once told me not to waste time trying to get a party to trust their opponent, and to instead focus on getting the party to trust the mediator. Building this trust is far easier when you’re sitting in the same room, drinking the same stale coffee, and reading more clearly body language and other clues.
You have to work harder to develop that trust when using a virtual format – maybe spending a little more time talking to parties about things other than the dispute, and being extra attentive to nonverbal communication. That means you shouldn’t spend the whole session looking at your own video image.
Moreover, most benefits to virtual have a corresponding downside. For example, the savings in cost can remove an incentive to settling. This is so because a long in-person session, especially if travel was involved, can encourage parties to get something productive out of the day and to take those few additional steps to get a settlement.
Similarly, the ability to stay productive during downtime not only removes the incentive of avoiding a wasted day, it can also lead to clients and counsel getting distracted and losing focus as they multitask on other projects. Because of this, I try to keep virtual caucus sessions a little shorter and, as mentioned above, will send texts to counsel updating them on my likely return time and asking that they be ready to go.
Outside distractions are another headache. These are most common when clients participate in a virtual mediation from their homes (or car – yes that happened) rather than going to their lawyers’ office. I try to learn before the mediation where the clients will be located. If they are not at their lawyer’s office, then I encourage counsel to emphasize to their clients how important it will be that they remain free from child care (get a sitter) and other household responsibilities during the mediation.
Finally, in arbitrations, virtual does not provide an ideal platform for assessing credibility of a witness. It can be difficult to discern if a witness is being coached or is referring to notes or other materials. Witnesses can be advised of permissible conduct during testimony, but policing the conduct is much more difficult.
Also, use of documents or demonstrative exhibits during testimony is more cumbersome in the virtual world.
Conclusion: It’s Time to Change Along with the World
Even before the pandemic, mediators and arbitrators would occasionally conduct telephonic or virtual mediations, but we treated such alternatives as unwelcome, undesirable, and likely unproductive. Like Melville’s Bartelby, we would prefer not to. Virtual was just not a realistic option.
The world has changed, and with it, that old viewpoint must change. We learned that, with a little additional pre-session planning and discussion, virtual can be the near-equal of in-person sessions in the vast majority of matters.
To be sure, virtual requires some additional planning, and there are trade-offs compared to in-person. But the widespread acceptance and use of virtual alternative dispute resolution (ADR) will be one of the enduring, and on the whole positive, legacies of COVID-19.
Because of this, mediators and arbitrators will need to be conversant and comfortable in the virtual world, as clients and counsel will demand nothing less. Virtual is here and won’t be going away – virtual is real.
This article was originally published on the State Bar of Wisconsin’s Dispute Resolution Blog. Visit the State Bar sections or the Dispute Resolution Section webpages to learn more about the benefits of section membership.
1 See Iliadis v. Four Lakes Education, Inc., et al., No. 19-cv-232, slip op. at 10 (W.D. Wis. Jan. 28, 2020) (so holding and citing authority from the Wisconsin Court of Appeals and the E.D. Wis.).