Maximizing the Value of Mediation During the COVID-19 Pandemic and Beyond

Bryan Cave Leighton Paisner
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Perhaps the most obvious shift in day-to-day legal practice in the midst of the COVID-19 pandemic is the “new normal” of virtual meetings and court proceedings.  While these can present some degree of challenge, video conferencing mediation instead of face-to-face mediation is perhaps one of the most challenging.

This post sets forth fundamental tips to navigate a virtual mediation – and importantly – provides a reminder that many of the aspects of a successful mediation remain constant even during a time when so much of daily life feels variable.

Preparation:  Several elements should be considered and discussed when preparing for a mediation session in order to achieve the most successful result.

  • Goals: Consider and understand your goals.  Clients and their counsel often discuss economic goals and alternatives, but should also identify non-economic sources of value.   Sources of non-economic value may open up ways of satisfying opposing parties’ goals.  For example, if it is important to one party to have the dispute completed by a certain date (perhaps because the dispute is impacting business operations), they may be more willing to compromise on the economics to have the issues resolved quickly and revive relationships with business partners.  Take stock of your financial, timing and relationship goals as well as how each ranks in importance against the others.
  • Friends and Foes: Assess whether you have any allies in achieving some or all of your goals.  Even if you do not view yourself as completely aligned with another party, others may view you as aligned with a particular other party.  Coordination with aligned parties – or parties perceived to be aligned – creates a powerful presence.  You may benefit from advanced coordination to permit you to express a unified view.  On the other hand, if a party’s optimal result is particularly opposite from yours, try to identify aspects of the dispute upon which you agree (or at least do not disagree) to see whether you can offer those aspects as a source of compromise.
  • Mediation is Not Litigation: The environment and approach for mediation differs from litigation.  Arguments in court proceedings tend to be comprehensive to avoid the risk of a waiving any legal position.  Mediation is pursued to ascertain whether a collaborative resolution can be achieved.  In a mediation session, focus only on the key issue or issues that would lead to a resolution, rather than arguing every potential issue that would arise in litigation.
  • Process: Understand the process for submission of any documents as well as communicating with the mediator and others during the mediation.  While remote mediations have turned hallway conversations into conference call conversations, the sentiment remains unchanged.  Prior to the mediation, establish how each party can be best reached during the mediation.

During:  Of course, preparing fully for the mediation is not sufficient to make the mediation a success.  Tips for making the most of the actual mediation session include:

  • Prepare to be Unprepared: Have a plan as to how to address questions from the mediator that require you to pivot your thinking or address concepts not fully considered.  In person mediation sessions offer the opportunity have a quick hallway chat.  Remote mediation sessions do not. Anticipate and plan for side bars using pre-arranged phone lines.  Zoom allows a mediator to have breakout rooms and Webex allows for private chats, but those things are not always glitch-free.  They can create the potential for inadvertent mistakes in confidential communications.  For example, sending a chat to all of the participants instead of a private message can easily occur.  Having a separate conference lines set up avoids these types of embarrassing issues (just don’t forget to mute yourself on the group mediation line!).
  • Be Cognizant of the “What” and the “How”: Keep a list of the goals discussed prior to meditation handy to serve as a reminder of the principles to circle back to.  Remain focused on “what” it is that you are looking to attain.  However, the “what” cannot be achieved adequately without honing in on the “how”.  If a mediator or party to the mediation agrees to a particular concept, it is important to recognize that parties may be envisioning the method of attaining the goal differently or may not have thought it through completely.  Focus not only on the details of “what” you are getting, but also of “how” you are going to get it.  Think through the implementation of a desired result and avoid abstract resolutions.  For example, make sure that if a party agrees to compromise on a particular issue it is clear how that compromise will be documented, which approvals, if any, are required, and how long the process will take.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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