Although largely unknown to the average litigant, alternative dispute resolution providers across the country have offered virtual mediation services for upwards of a decade. The sudden increase in the popularity of these virtual services is, of course, due to COVID-19. The pandemic’s restrictions on travel and in-person gatherings have brought virtual mediation to the forefront of litigation.
At the start of the pandemic, litigants considered virtual mediation a stop gap that would keep the legal system going until they could get back to “normal,” but now virtual mediation is cemented in the savvy litigator’s playbook. Its ease and convenience have proven it a viable and consistent option, superior to the now potentially risky in-person model. Based on the overwhelmingly positive feedback I have received from lawyers, parties, and claims representatives alike, virtual mediation will continue in full force post pandemic.
Virtual mediation is convenient, saves on travel time and costs, and is just as effective as the traditional model for most cases. During this time of litigation slowdowns and court closures, virtual mediation has kept litigation moving forward and helped to clear desperately overrun court dockets. It has come to the rescue of those who are simply unwilling to risk in-person mediations or any type of jury trial right now. Yet despite all of the amazing benefits of virtual mediation, there are still people who are too afraid to even try the exercise.
These are the three most common misconceptions I hear and my concern-busting responses:
1. You cannot build rapport with people on a virtual platform.
But of course, you can! It is late 2020 and you would be hard-pressed to find anyone without some form of social media presence, but even less likely to find someone who did not feel connected to a person on the internet that they have never actually met. Consider that if you have ever had a crush on a television or movie star that you have only ever seen on screen, they were able to connect with you while not even communicating with you directly.
Plus, and most important, mediators are professionals trained to deal with all types of personalities, situations, and adversities. What may be impossible to someone not professionally trained to mediate, and experienced in doing so virtually, can simply be a non-issue to an experienced virtual mediator.
You can overcome this particular hesitation by spending some time researching your mediator online. Look into their online presence and see if it resonates with you. If it does, great. Give them a shot. If they seem unable to connect with people online, maybe look elsewhere.
2. You cannot tell if participants are paying attention.
This is actually true. The lawyers cannot tell if the other participants are paying attention, but the mediator—who spends significant amounts of time with everyone—can. Opposing parties typically only spend a few minutes together during an opening session where brief statements and presentations are made. Emotions often run high on mediation day, so it is entirely possible that the parties are not listening to the other attorneys when they speak. Or, of course, it may just look like they are not paying attention. Many people work hard to hide their emotions on mediation day.
Regardless of whether the parties are listening to each other during opening statements, the mediator is certainly paying attention and can and will address the relevant issues and ensure that the parties know and understand exactly what is going on. We have an ethical duty to do just that. So, this fear is not one that should prevent you from mediating virtually.
You can also minimize this worry by doing your personal best to create a welcoming atmosphere for the opposing party. This can be a daunting task after months or years of litigation, but if you take advantage of your opening statement, you can drastically cut the tension between the parties. Never forego an opportunity to create a positive rapport directly with the opposing party! Remember that for the average litigant, mediation day is the most important day of their life. They have agreed to a process that will potentially replace their jury trial. Compassion and empathy will go a very long way.
3. It is too easy for participants to leave and give up.
It may technically be easier for participants to leave because they just have to click a button to successfully exit the meeting, but I have actually found that people are more committed and will stay longer to work through their issues. The simplest explanation I have been given for this is that because people log into the virtual mediations from locations that are comfortable to them, there is a decreased sense of urgency to leave that might otherwise exist if one were many miles from home. For example, there is no desire to beat rush hour, nor need to get to daycare on time. Everyone is focused more intensely on the task at hand, and less on the clock.
Plus, in the rare event that I have experienced a participant leaving a virtual mediation, they each quickly returned and hoped that their departure had not yet been announced to the opposing side. Contrast that to an in-person mediation where a participant angrily and dramatically storms out of an in-person mediation for the benefit of opposing counsel watching them do so. It would be nearly impossible to get that person to return, simply as a function of their pride. When this is done virtually, usually the mediator is the only person to know it has happened and loss of pride in returning is a non-issue.
Remember, not all mediators are created equal. A negative experience with one has no bearing on the process of virtual mediation as a concept. If you have tried it once and did not like it, consider letting your mediator know what your concerns were. The mediator likely has an explanation for you of why something happened in the way in which it did. Be sure to ask all the questions you need.