[Podcast] Where Do We Go From Here? The Future of Virtual ADR

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A podcast from JAMS featuring Hon. Rebecca Westerfield (Ret.) and Scott J. Silverman (Retired Judge, Eleventh Judicial Circuit) on their experiences in virtual alternative dispute resolution (ADR) and their views on the future of the industry

In this podcast, these neutrals reflect on the transition to virtual mediation and discuss the benefits of virtual proceedings, offer insights to ADR professionals who are entering the virtual sphere and share their perspectives as to what we can expect from the industry when the pandemic is over.

They also discuss how the transition to virtual mediation has presented an opportunity to develop, and even improve, ADR. From practicalities to logistics, virtual mediation has produced a more efficient ADR system, and Judge Westerfield and Judge Silverman believe it is here to stay.

Moderator: [00:00:00] Hello, and welcome to this JAMS podcast. Today, we're in conversation with two JAMS neutrals – Judge Scott Silverman out of Miami and Judge Rebecca Westerfield out of San Francisco. We connected with them last April when the COVID-19 pandemic had just begun to cause shutdowns and JAMS had just shifted all its ADR offerings online.

So we thought it would be a good time for an update, learn how their approach to virtual ADR has evolved and get their perspective on where things go from here.

Judge Westerfield, when we first connected last April, you described yourself as a neophyte to virtual and remote ADR. One year later, would you consider yourself a convert?

Judge Westerfield: [00:00:44] I would consider myself a veteran. I have now over a hundred days of Zoom sessions and dozens and dozens of cases, both mediations and arbitrations. And frankly, I don't think I could have gotten through the year, which has gone by so quickly, without the help of JAMS staff and training in the use of various virtual platforms. It's been quite a learning curve, it's been an exciting curve to ride and I’ve really enjoyed it.

Moderator: [00:01:16] And Judge Silverman, how would you characterize your sort of virtual ADR journey since the onset of the pandemic?

Judge Silverman: [00:01:23] I am likewise a veteran of this battle, like Judge Westerfield, I've handled well over a hundred mediations and arbitrations via Zoom. And what I've learned is that a necessity can move mountains. And I think back at the start of the pandemic, I had an upcoming case that canceled because the attorneys just didn't want to move forward with it, and Zoom had not yet been an option. Now, in those days, and it's funny I'm saying those days, cause I'm really referring to a year ago. You mentioned the word Zoom, somebody probably thought you were referring to an action hero, right? But today, in our community, it has a whole different meaning.

At the beginning of the pandemic, if a mediation couldn't be held in person, it was going to cancel. It was just that simple and most lawyers were concerned about the danger of the coronavirus and understandably wanted to keep their distance. But at the beginning of the pandemic, what I recall, the scheduled mediations were dropping like flies at a pesticide factory. And then we got into Zoom.

Now, law firms realized they had to move forward. They were at a standstill. Courts were effectively closed, depositions weren't moving forward, disputes weren't resolving, and lawyers were rightly concerned. Rents hadn’t abated and they didn't want to lay off people. And like all people in this country, people need an income.

So, as I said, necessity can move mountains and the legal community, which is generally slow to adapt to change in any way, on the very best of days, moved mountains with video conferencing. And so did JAMS, we were out there as a company to meet this very quick changing landscape, and we've all become veterans of it. And we've been moving forward ever since.

Moderator: [00:03:07] And Judge Westerfield, early on, I know you heard some skepticism voiced among lawyers who felt they weren't able to read their client as closely as they were in the same room or, or that arbitrators weren't able to judge the demeanor or credibility of witnesses through video. Have those concerns faded away a bit over the last year?

Judge Westerfield: [00:03:26] I would say they haven't faded away completely, but I think there's a lot more comfort with the virtual platforms. And I think that the attorneys have learned to adjust through also hybrid methods. So, for instance, sometimes attorneys will have their clients in their office with them socially distanced. They may have them in another office, but at least they're under the same roof, so that they feel more connected to their clients. And I, again, I think it's worked fairly effectively and well.

I, I wanted to add something though, and to Scott's point as well—virtual use of ADR is here to stay, it's embedded in the system at this point. There's no question about it because of all of the advantages that we identified last year. I'm sure we'll talk about again, but I think to that point, for instance, the American Bar Association, recently as of March 10th, issued an ethics opinion, as a think it's formal opinion 490A with regards to virtual meeting platforms, which of course includes Zoom.

And it puts certain ethical obligations on attorneys to familiarize themselves with the terms of the service platform that they're using. And to make sure that the meetings are secured in order to protect their clients, the confidential information, which has always been a big concern. And along those lines, interestingly, the International Bar Association has also amended its international rules and in article eight, allowing for evidentiary hearings by virtual platform as well. I think this is only the second time that the International Bar Association has done any major revision of its rules. So, attorneys and neutrals must be aware of their ethical responsibilities and be very familiar with ADR, or they're not going to be able to practice law and they're not going to be able to practice ADR.

Moderator: [00:05:32] So it's really becoming part of the landscape. Judge Silverman, what are some of the benefits you've observed now that you've had a a hundred plus ADR virtual proceedings under your belt? Are there certain ways that virtual ADR is actually a better option than in-person?

Judge Silverman: [00:05:45] You know what? Here, here's the good news. So, one's refrigerator is only 40 feet away from their computer usually. So, if you need to get a snack, it's right there. But I think two benefits, obviously one there's less posturing by the lawyers. It's not to suggest it doesn't exist, it certainly does, but it's less and it's far less dramatic than in person. There's something about sitting in front of one's computer that people just don't flail their hands and raise their voices all that loud.

So, I mean, this is, this is good. And the mediations tend to go a little quicker because there is less posturing. It's more business. There's just something about sitting in front of a computer screen where people want to get business done. And Judge Westerfield and I are on the same, same track on this one. We are never, ever, ever, ever, ever going back to the way it was.

And if you talk to lawyers, many of them don't want to go back either. In virtually every mediation I do, I asked the lawyer as well, you know, how have you been getting along? What do you think of process now? And with motion counter in particular, none of them want to go back to going back to court in person because they typically burn three hours for a five minute or ten minute hearing.

And in mediation, nobody has to fight traffic downtown, nobody has to worry about the elevators; it's just so much easier. Prospectively, the landscape has changed forever.

Judge Westerfield: [00:07:10] So I would, I would add to that, and I totally agree with Scott, is that there is something about the quality of the conversation in a virtual ADR that gets to business faster, that gets to the issues faster. There is a density that I think also sort of adds to the cognitive load that the, the attorneys have to deal with. And, and I think that they are again, not wanting to deal with extraneous things and consequently, the mediations are shorter. And sometimes we get something done in one day and a lot done in a very short period of time. Then we'll take a break and then we'll come back on another day to finish up. But the time that's actually spent in the session is considerably less than the sort of all day marathons till one o'clock in the morning type of sessions that we used to have when we were in person.

Moderator: [00:08:13] Those are great points. And Judge Westerfield, now that you have so much experience under your belt, for those practitioners who may be don't, are there any tips you'd provide to them? Who are approaching one of their first virtual ADR proceedings, anything to be on the lookout for?

Judge Westerfield: [00:08:28] Well I would say absolutely, you need to get training. I don't think there's anything in particular that I would identify except to make sure that you have the bandwidth, that your equipment is working and that you're fully knowledgeable about how to navigate through the system. And that, that takes a little bit of training, but it's much more intuitive than what folks who may have not used this process before may even think. It's very intuitive, for instance, JAMS has trainings, obviously for our neutrals on a full-time basis, we talk about various things that go on that we want to improve on, to make sure that we have a good flow in our sessions, but also there's trainings for practitioners, for lawyers who are unfamiliar.

So I don't think anything, other than make sure you do a dry run with your, with your equipment, from wherever you're going to actually do the virtual ADR. I think that's that's important and you don't have to necessarily do it with a mediator obviously, or even the other counsel. You can do it with a family member, it's a great excuse for visiting a family member or something of that sort or have some friend via Zoom. But the thing is to, to test it.

Judge Silverman: [00:09:43] Yeah, I would like to add to that. I think the most important thing you could do is get a good, comfortable chair that helps a lot. The other, the other thing is one of the benefits to Zoom is it's very easy to share documents, even more so than in person, frankly.

And if you're going to make your first presentation and opening statement, line up those documents that you intend to show, you can highlight them, you can search them, there's a lot, you can do to emphasize whatever point you're trying to get across to the other side. And get some decent lighting and learn to modulate your voice. Most lawyers know how to do that, litigators know how to do that, but it's a different medium, it most definitely is.

But the nice part about TV, if you will, is that people tend to believe everything they see on the internet and television. So, you know, maybe you can get the other side to believe what you're saying, who knows. But it's different.

And by the way, make sure you have a mediator who knows what they're doing when it comes to shuffling people around rooms. One of the most frustrating things for people I, I believe, is if they get forgotten about in a room, or they get put in the wrong room, or the mediator is not quick to respond to a request to come into their room. So make sure your mediator has some experience doing this. It will make life a lot easier.

Moderator: [00:11:03] Hmm, of course one recurring theme throughout the pandemic is how regions have handled this health crisis differently. I think San Francisco and Miami are probably on different ends on that spectrum. Curious how you both would characterize the acceptance or approach to virtual ADR in your respective cities? Uh, Judge Westerfield. How about San Francisco?

Judge Westerfield: [00:11:25] Well, obviously we're sort of the capital of Silicon Valley, so it's been very well accepted and as Scott has already pointed out, I think it's going to be a long time before we have mediations and perhaps even arbitrations that are a hundred percent in person. So, it's very well accepted here. Part of it was necessity as, as he also pointed out. Part of it is just an ease with the technology.

Moderator: [00:11:52] And Judge Silverman, how about Miami?

Judge Silverman: [00:11:53] Well, Florida, you know, our governor has been trying to open up the state for, it seems like forever, but the judiciary has been kind of reluctant to open it up. Interestingly enough, we had a tweet come out from our circuit just a few days ago and it said that we're going to start trying cases. And then a couple of days later there was something that said, by the way, if you've been in this courthouse, in this room, somebody has been exposed to COVID, you know, take precautions via the CDC.

So, I don't think courts are ready to do anything. I think that the courts have been happy to default to ADR via Zoom. I think a year and a half ago, if somebody had said, Judge, you know, can we do this mediation via video conference, because my adjuster is stuck in the snow in Ohio? There would have been an objection from the other side, the judge would have sustained the objection, and that would've been the end of it.

That objection will never, ever again be sustained because judges have been doing this process online with lawyers for the past year. Miami, in particular, is practical. It's pragmatic for the most, for the most part. It very, very well is. And the lawyers have, have settled into this new norm.

Moderator: [00:13:05] And both of you, I'm curious if any cases stick out over the last year that you'd count as a particular success. Judge Westerfield?

Judge Westerfield: [00:13:13] Yes, well, thank you. I would say one involved a company that was in Asia, so it was practically an exact 12 hour time difference. And I think that this case was handled very well on a virtual ADR like forum. I mean, imagine the cost and travel on that, being able to do a case like that on the virtual ADR platform, the cost savings were enormous and it really, really worked out well. We were able to segment the case nicely. Everyone was already so versed, and so at ease with the virtual platform, that it went very, very smoothly. It certainly conflates the time zones. And that was extremely important in this particular case.

Judge Silverman: [00:14:06] Zoom has allowed me to do a mediation with one party who was sitting in the bistro in Istanbul, another couple who were laying in their bed in Thailand, a rockstar who was in Switzerland. All the barriers come down, they really do.

But, but, but it's interesting though, the one case I told you about that, I remember distinctly that's that canceled, right when the pandemic took hold and they, because they wanted to do the mediation in person. Six months later, they did it online, via Zoom. And that case ended up settling for eight figures. You know, there's been a general acceptance by the legal community, by the judiciary, certainly by ADR professionals, that Zoom or other similar platforms are here to stay. They serve a function, they may not be option A in the future, but they're going to be option A minus.

Moderator: [00:15:05] Thank you for this great conversation.

Let's wrap up with a look into the future. And last April, I think both of you were sure that this, virtual ADR, was here to stay and would have a significant impact on the future of ADR. I hear you both saying that, but what does the future of ADR hold and how does virtual play into that? Judge Westerfield?

Judge Westerfield: [00:15:26] Well, it's, it's simply a necessity and we're all going to be using it for the rest of our life. How it will change? I'm going to have to leave that up to the technicians. I don't, I'm not sure we could have imagined virtual ADR in this form 10 or 15 years ago. So, I don't quite have the imagination to know what it's necessarily going to look like ten years from now or five years from now.

I mean, if you want to go into real imagination, I suppose you can say, well, currently we are limited to five senses, you know, hearing and seeing. Will there be some sort of virtual platform that will give us the ability to add other senses that will make it even more like being in person?

As we sit here, I suspect there are people working on that very possibility right now, but it's here to stay.

Judge Silverman: [00:16:22] Yeah. Judge Westerfield is a better futurist than I will ever be. And she's probably right. These will come down to holograms, like in the first episode of Star Wars, you know, we really don't know what the future holds, with this horrible pandemic and it has been horrible. And so many people have died. So many people have gotten sick. We can always look for the silver lining in tragedy and that the silver lining, at least in our profession, is we've been thrust 25 years into the future. Albeit kicking and screaming to some degree, but video conferencing is now generally acceptable. It's preferred by many people and it's, it's going to end up being good for, for clients. It's going to be good for lawyers. It's going to advance justice, so that justice is provided to those who are seeking it quicker.

At the end of the day, I think with these types of platforms, we're in a good place. And I don't know what the future holds, but if I really want to know, I'm just going to ask Judge Westerfield.

Moderator: [00:17:22] Well, I look forward to having this conversation in the next five years or ten years, but for now, let's leave it there. And I want to thank both Judge Westerfield and Judge Silverman. Thank you.

You've been listening to a podcast from JAMS, the world's largest private alternative dispute resolution provider. Our guest has been JAMS neutrals, Judge Rebecca Westerfield and Judge Scott Silverman. For more information about JAMS, please visit www.JAMSADR.com.

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