Reflections About The Pandemic, ADR And A Look At What's Ahead

NAM (National Arbitration and Mediation)
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NAM (National Arbitration and Mediation)

I remember the day quite well, March 16, 2020, leaving NAM's midtown office after my last mediation, stepping out onto 42nd Street at the height of rush hour, and finding a ghost town. New York City, New York State, and most of the United States was shutdown. How long was it going to last? I thought only a few weeks, maybe a month. Was I ever wrong, not even close!

On my way home, I thought about what was unknown about the Covid-19 pandemic at the time, not to mention what was to become of my career as an arbitrator and mediator.  I worried about using Zoom solo. Questions arose. Would I be able to handle the new technology? Work remotely? I questioned whether attorneys would want to use this new technology?  Admittedly, I considered myself somewhat technologically impaired, but what choice did I have? Surprisingly those early days went smoothly, and for the most part the transition went well, not only for myself, but for my fellow mediators, as well as the bar.

Since that faithful mid-March evening, I have conducted hundreds of virtual mediations and arbitrations. Most hearings have gone off without a hitch. Alternative dispute resolution (ADR) and the legal profession overall have undergone a rapid change, which I believe is here to stay.  In-person mediations and arbitrations are once again being scheduled, digital conferencing or Virtual ADR is being utilized more than ever and thriving.

The Virtual ADR Advantage                                                                  

The Zoom platform is safe, easy to use, and is ideal for ADR. It brings parties together not just regionally, but throughout the U.S. and globally.  It eliminates travel time and enables attorneys, insurance professionals, and clients to appear virtually anywhere, while comfortably sitting at a desk in their office or home. It allows the mediator to separate parties, share documents, e-files, all in a private and secure setting. Attorneys can cover multiple locations in just a day. Quite simply, digital conferencing makes the ADR process so much more productive. In my experience, I don't think there has been a single case that did not settle because the mediation was on Zoom rather than in person. Unquestionably, long delays in the court system has also lead to wider use of digital conferencing.

The In-Person Experience

Of course, the ultimate goal with any mediation or arbitration is resolving a case or presiding over an arbitration to the satisfaction of all parties. But I do miss regularly having in-person mediations and arbitrations. Discourse regarding the case being mediated, and other matters pending between the parties, are all part of the in-person experience and that quite frankly is absent from the digital conferencing platform.  An in-person mediation can also be a social experience. I do miss my colleagues and the interactions with the attorneys and fellow mediators in the hallway. Surprisingly, these water cooler chats can often result in advancing the mediation to the point of resolving the dispute.

Advice to Counsel and Clients

I do have some suggestions to counsel and clients when participating in a Zoom conference.  Sometimes parties prefer not to use the video feature. The result is that you see names without faces. I prefer a face-to-face experience so I know who I'm speaking with and can gauge facial reactions.  It improves communication and the flow of the mediation if I you can see one another.  Also, I tell counsel to have your client attend the Zoom mediation.  I think it's important for the client to meet the mediator.  It adds to the seriousness of the task at hand and allows me to introduce myself to them so they will be more comfortable when separated while the negotiations are ongoing.

Looking Ahead

As to the future, virtual ADR is here to stay. Most people like it, and the platform is easy to use. It saves time, money, and makes the ADR process more productive. I believe we will see more hybrid cases, where one or more parties are in-person and others appear virtually. Additionally, digital conferencing allows companies, like NAM, to expand their reach to jurisdictions outside the New York metropolitan area.

The expanded use of remote technology has certainly altered the ADR landscape, and for the better, as we now have more ways to reach clients, counsel and even witnesses. The practice of law and how the courts function, have also undergone massive changes, with trials few and far between, virtual conferencing has replaced in-person appearances, at least for now.

I look forward to our new normal and to seeing everyone both in person and virtually in the very near future.

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