Lately, I am reminded of the John Lennon song, “Nobody Told Me There'd Be Days Like These.” Courts are essentially closed. Settlement conferences and trials are suspended for the foreseeable future. Without cases going forward, clients are in limbo.
By temperament and by training, litigators are built to adapt, and respond quickly to unexpected events. Even with the courts closed, attorneys can continue resolving cases for their clients through video mediations and arbitrations. To put it mildly, I am not a technology wizard. As a Hearing Officer at NAM, I just completed my training in virtual ADR, and was surprised how easy it is to host and participate in a virtual mediation.
The mediation process is the same: after joining the video meeting, the parties first meet together to discuss the background of the case. The Neutral then separates attorneys, with their clients (or claims representatives) in virtual breakout rooms and can shuttle between the breakout rooms to discuss the case, without the other parties hearing or seeing the conversation. The process alternates, as in a physical mediation, with the Neutral going back and forth between breakout rooms, until a resolution is reached.
As with any mediation, there are several important considerations.
Select a Mediator You Trust
As opposed to Supreme Court Justices and Court Mediators, a major advantage of Alternative Dispute Resolution (ADR) is the ability to select your own “Judge.” Take full advantage and select a mediator who has expertise in your type of case, and who is effective.
Importantly, select a Mediator whom you trust and are comfortable working with. There will be a crucial point in every mediation where each side must be frank with the mediator, and communicate their goal to settle the case. The Mediator will work to reach a goal beneficial to all sides. You will need to be able to trust your Mediator when you are asked where you need to be in order to successfully settle the case for your client.
If you are not personally familiar with a suggested mediator, canvass your colleagues. Is the Mediator effective? A Mediator should be a good listener, present the parties position well, and utilize creativity when needed. Speak with a proposed Mediator beforehand. Mediators welcome these conversations, since it allows you to select someone you are comfortable working with.
Always Submit a Pre-Mediation Brief
Pre-Mediation Briefs enable the mediator to learn the facts, disputed issues, and settlement posture. For video mediations, the Pre-Mediation Brief can simply be e-mailed prior to the mediation date.
Parties should always submit Pre-Mediation Briefs. The Brief is even more important for video mediations, since exhibits and documents can be reviewed in advance, making the Mediator more knowledgeable and effective. Personally, I prefer that parties do not exchange Pre-Mediation Briefs with each other, so that all can be candid with the Mediator about the strengths and weaknesses of their cases, as well as their settlement positions.
Make Every Effort to Avoid “Trial Blinders”
Good advocates are well prepared, and believe in their arguments. Deep preparation, however, can lead to “trial blinders” where the attorney loses the objectivity necessary to compromise, where appropriate.
It is important to strongly advocate on behalf of your client, but remain open to what your adversary is saying. There is no judge or jury to impress. By keeping an open mind, the mediation is an opportunity to learn about your case, both from your adversary, and from the Mediator. Mediations are a “test drive” which make you a more effective advocate for your client.
A highly successful plaintiff's attorney put it best – “I attend every mediation with the attitude: “I'm here to listen.”
Have the Client/Decision Maker Available at Mediation
Video mediations make it even easier to have your client, or claims representative, “present” at the mediation. A client can join the meeting remotely, or go to their attorney's office to participate. Video technology allows an attorney and the client to be placed in virtual breakout rooms, where they can speak privately, while the Mediator speaks with the other attorney.
Given the convenience of virtual mediations, I predict that, even when physical mediations resume, insurance companies will avoid the expense and inconvenience of sending their claims representatives to mediations, especially where the carrier's office is out of town. The claims representative will join the mediation by video, saving the carrier significant travel expenses.
In sum, experience is showing us that virtual mediations appear to have the same rate of success as in-person mediations. As both a practitioner and as a Hearing Officer, I never attended a mediation where I felt the time was wasted. Even if a case does not settle, by mediating, you learn your adversary's arguments, and get a neutral's evaluation of the strengths and weaknesses of your case. At a minimum, you can size up your adversary, and learn that you better get ready for trial.