PODCAST: Virtual Mediation & Arbitration: The Benefits, Challenges and Attorney Reactions

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A special podcast from JAMS featuring Hon. Rebecca Westerfield (Ret.) and Scott J. Silverman (Retired Judge 11th Judicial Circuit)

The COVID-19 pandemic has changed the daily realities of how we work, interact, and function as a society and we’ve found ourselves looking for creative ways to connect and keep legal and business matters moving. JAMS has been working with its entire staff and roster of neutrals to successfully resolve disputes via videoconferencing.

JAMS has produced a special podcast to share the perspectives of two of its highly respected neutrals who are using virtual mediation and arbitration effectively to help parties reach settlement or arbitration decisions in this new, remote environment.

 

Moderator: Welcome to a special podcast from JAMS. Today we are talking about virtual mediation and arbitration, which have become essential to ADR amidst the spread of COVID-19. In this episode, we want to dive into the benefits, misconceptions, client reactions, and challenges around virtual mediation and arbitration.

So we have invited two former judges and current JAMS neutrals who are well-situated to address these issues. With us are Judge Rebecca Westerfield, who is joining us from San Francisco. A JAMS panelist since 1992, she has settled and arbitrated thousands of domestic cases and cross-border disputes throughout the United States.

We also have with us Judge Scott Silverman from Miami. He has been a fulltime neutral since 2012 and has acted as mediator, arbitrator, special magistrate or neutral evaluator in hundreds of matters, many numerous practice areas, both domestically and internationally.

Thank you to both for joining us. Let's dive right in. I'll ask both of you this first question but want to start with you, Judge Westerfield. I'm curious about your experience with virtual ADR. How long have you been doing ADR through video conferencing?

Judge Westerfield: Well because of this crisis that we've been in, I'm sort of a neophyte to virtual and remote ADR.

I have had about four to five cases in the last couple of weeks, and I'll have three more next week. I think this has been a time when many of us have been thrust into the reality of having to use remote ADR to keep our businesses going.

Moderator: And Judge Silverman, same question to you. What's been your experience?

Judge Silverman: Well, thus far, it's been a very positive experience. I will tell you that I did some video conferencing several years ago when I was dealing with some parties that were in Italy, so we did the mediation via, I think, Skype at the time, if I'm not mistaken, and that proved to be successful. We've all been thrust into this new area of video conferencing as a norm now rather than an exception.

But I will tell you it's been very, very smooth. Like Judge Westerfield, I've gone through several mediations already online. It's been very positive. I've got three coming up next week and the following week I have an arbitration that will be done through video conference.

Moderator: Wow. That's a brave new world.

Let's talk about the benefits. Obviously, we're all kind of discovering this, but Judge Silverman, what benefits have you seen to video conferencing for ADR?

Judge Silverman: Well, clearly, I think the first one is you don't have to leave your home, your office to do it. Much like a regular mediation, you know, the mediator will shuffle through the virtual rooms.

The parties can have their own private rooms where they can discuss things as you would in a normal or traditional mediation setting. I guess one funny thing is you don't have to worry about what you were below your waist. So long as you have a nice shirt or blouse or jacket on, everything's fine.

Of course, this assumes that you have a fixed camera on your computer.

Moderator: Judge Westerville, do you agree with that analysis?

Judge Westerfield: I think that one of the positive benefits is cost, and the cost is in the savings of travel and all the disruption to the regular business that folks are having to attend to.

It's so easy just to jump into a Zoom or another, whether it's Zoom or Microsoft Teams or whatever medium you're using for your virtual ADR process. It's just so much simpler. As a result of that, we're also able to get key decision makers in the process, which in the past, sometimes is a little bit of a challenge, so I consider those a big benefit.

I think people are very surprised who use the virtual ADR process for the first time to feel how really intimate it is that you really do have the sense of being with someone in a face to face sort of situation, that really lends to, I think, a building of trust rather than distrust. It's been very interesting to see how quickly people become comfortable in the setting.

Judge Silverman: If I may add one thing - when you talk about the comfort and the intimacy of the discussions, I think that is largely due to the video quality, the audio quality. To me, the first time I did it, it actually exceeded my expectations. And the other thing I noticed is that the mediations I've done online through video conferencing, they've actually gone a little faster than the in-person mediations.

I don't know if you've seen that too, Judge Westerfield, or not.

Judge Westerfield: Yeah, I have. It seems to me that there is an intensity to the process that creates a more focused attention, and so I think we're getting things done much quicker.

Moderator: Judge Westerfield, this crisis has shown that JAMS is quite capable of handling these ADR hearings through video conferencing.

Can you walk us through the offering that JAMS has in terms of video conferencing?

Judge Westerfield: Well JAMS has at this time two primary platforms. One is an Endispute platform, which is also in coordination with CourtCall. The other is a Zoom and that has been used throughout the company. As you know, we are working very assiduously to make sure that the security is optimized on our end with regards to that particular platform.

Although I have not yet had experience with Microsoft Teams or WhatsApp or Blue Jeans, I know that some of our law firms, some of our clients are using those platforms as well.

Moderator: And let's just switch to the challenges. Obviously, there are some. Which ones have you identified and how are you overcoming these?

Judge Silverman, you want to start with that?

Judge Silverman: Well, on a personal level, I've always been a bit of a techie anyways, so the challenges of using the software have, at least for me, been very minimal, but I've also heard the same from people that are novices. The only real challenge I've seen was just in having private discussions with lawyers is kind of the knee jerk reaction to preferring the in-person mediation over doing one online. And I understand that initial response, but the ease when people get online to do the mediation is just remarkably simple. To quote my granddaughter, who is nine years old, it's like easy peasy lemon squeezy. It's that simple. But with reference to arbitrations, I will tell you the JAMS comprehensive rules actually contemplate doing arbitrations through video conferencing. It's specifically provided for in its rules. So, this is something that the parties have actually accepted beforehand. And my experience with my arbitration that's coming up, quite frankly, is I had absolutely zero pushback. Zero. The parties and, in particular the lawyers, were looking forward to resolving their dispute and saw this as a viable means of accomplishing that goal.

Moderator: Judge Westerfield any resistance that you've seen? Or challenges?

Judge Westerfield: Once we actually sit down with folks, and by sit down, I mean get them on Zoom before we do an actual mediation or before someone signs in and on a virtual mediation, we set up a session to get people comfortable with the process and once they go through sort of a test run, I think they are surprised again about how comfortable they are with it and how easy it is, how intuitive it is and find it really very effective. I think in terms of some of the responses from the lawyers that I've talked to is, one downside they see is, they feel they're not able to read their client as closely as they can if they're actually in a room with them. However, I think what they are learning is what they need to do is make sure they're having lots of contact with their client prior to the mediation itself, so they can really prepare the client and have a way of communicating with them, if necessary offline, all together outside the breakout room or however they want to communicate during the mediation process itself and folks in it seem to be a little bit more comfortable with that, but obviously the lawyers are very attentive to their client relationship.

Moderator: Very interesting. Judge Silverman are you hearing any concerns or questions from clients about the online ADR process? Anything that is giving them apprehension or concern?

Judge Silverman: I heard from one of my colleagues in South Florida that a concern was expressed to him about the use of doing an online arbitration.

And their concern specifically was that the arbitrator or arbitrators did not have the ability to judge the demeanor and credibility of the witness or witnesses that were testifying. And I said to him that, you know, in the judiciary, and most of us at JAMS, are former judges and most left the judiciary with stellar reputations. But we've been dealing in judiciary with videotaped depositions of experts or fact witnesses outside of the jurisdiction for literally decades. This is nothing new to us, and it's nothing new to the process either. So, I told him, I said, you know, put them at ease because this is really not much different than what's been going on in our public courts for literally probably two scores or more.

Moderator: Let's turn to questions about misconceptions. You've sort of touched on this already, but are there any misconceptions, Judge Westerfield, that you feel that people have about online ADR that this experience is dispelling?

Judge Westerfield: Well, I think fundamentally there is still reservation about its effectiveness. Overall, will we be able to get a resolution out of this process?

And I think the answer to that is: absolutely, we can get a resolution. It may not be in the same way that we've gotten resolutions in the past. I think that it requires a lot more upfront work before the mediation session itself. And I think it requires, sometimes, a lot more post session follow up. Now I'm seeing a bit of a trend where you're not settling the matter in one session. It might take one or two, but it's still a thoughtful, dynamic, productive process that results in a resolution and at the end of the day, that's what they come to us for.

Moderator: Any hurdles on getting to a resolution that you're seeing through video conferencing, Judge Silverman?

Judge Silverman: I haven't seen any hurdles at all. I will tell you, you know, the question I think that a lot of people have is: Is video conferencing for mediations effective? I know the judge spoke about this for a moment, but in a perfect world, we would love to do mediations in person.

I mean, that's the way we've traditionally done that, and that's the way, you know, we would prefer to do. Today's not a perfect world. It's an imperfect world. It's a topsy turvy world with a lot of disarray and question marks. With that being said though, in my experience thus far, it's been incredibly effective.

It’s really no different from an in-person mediation. That's my experience.

Moderator: We're still very early on in this new world. Without naming any names, I was wondering if one of you had a success story that you can share. Judge Westerfield?

Judge Westerfield: Well I've had mediations that have obviously resolved using the virtual platform.

I would say I would agree with Judge Silverman. In those instances, it wasn't much different from doing it face-to-face. There are some challenges, again, in terms of being able to perhaps identify the true decision-maker, getting the true decision-maker into a conversation online is sometimes a little bit more challenging than what it would be in person.

But I have the good fortune of having worked with a lot of lawyers and a lot of clients over the many decades. And so, I think they have a sense of trust with me that enables me to make use of the platform.

Moderator: And Judge Silverman your docket is pretty busy with video conferencing so far. Any success stories you want to share?

Judge Silverman: As far as I'm concerned, they've all been successful. I don't feel as though anybody's been shortchanged at all. To the contrary, as I mentioned earlier, I think these online mediations tend to go a little faster. I find that the parties, when they sit down and talk, that is lawyers and our clients sit down and talk, they do so in a more direct fashion because I guess they feel like they've got somebody waiting on the phone, and so they want to get back to them sooner than later, but it's very direct.

It's very simple. Anything I want to say, I can say. Anything lawyers and their clients want to say, they can say. The difference is they're doing it from the comfort of their own office or their home. It's been very successful.

Moderator: It does sound like you have heard a lot of positive responses from clients, so I just wanted to maybe end on this.

Have you seen anything learned by clients? Are they getting more comfortable? Any observations that you have from clients about this new technology and how they're adapting?

Judge Westerfield: I would say unquestionably, they've gotten more comfortable with it, more amenable to using the process, and while it may not be the only way to go once we're outside of this crisis, I think it is definitely going to be a very, very significant tool going forward in resolving disputes, whether it's by arbitration or mediation, and the clients I think are going to ask for it.

Moderator: Yeah. How about the future, Judge Silverman? Do you see this as sort of a changing ADR significantly going forward?

Judge Silverman: I'm somewhat reminded of a 1980s ad for Quaker Oats, and when I mentioned it though, maybe some people who hear this will go, "Oh yeah, I remember that." But it was two young brothers fighting over a Quaker Oats cereal and one saying, "I'm not going to try it. You try it," and the other one says, "Nah, I'm not going to try it. Let's, let's have Mikey try, cause Mikey doesn't like anything." And Mikey ends up trying to cereal and he consumes basically the entire bowl and the brothers say, "Hey, he likes it! Mikey likes the cereal!" And I think this is probably going to be true for mediations conducted by video conferencing because once lawyers try it, there'll be just like a little Mikey who liked the healthy cereal.

They'll end up liking it.

Moderator: It's true. We are getting used to a very different world. Any final thoughts, Judge Westerfield, about where ADR goes from here? Any thoughts about this new technology and how it's being used?

Judge Westerfield: No, I just think that it's a wonderful era of exploration, of all kinds of alternatives. I think we're just, as you pointed out, at the beginning of this new era.

And I think that's pretty exciting.

Moderator: You've been listening to a special podcast from JAMS, the world's largest private alternative dispute resolution provider. For more information about JAMS and its response to the COVID-19 outbreak, please visit www.jamsadr.com.

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