Mediation has always been a process, not just an event. This process includes pre-session submissions to the mediator (and to all parties) and joint and/or individual pre-session calls. Historically, we have focused disproportionate attention on the single day when everybody gets together in the same room. Despite the fact that most parties spend most of their time on that day in separate rooms, we know that having everybody together can build momentum toward settlement that is hard to replicate in any other environment. Because of this, we spend a lot of time and effort to make that day happen. Part of the reason for the disproportionate focus on this part of the process is because it is often difficult to get everybody together at one time.
Virtual mediations present an opportunity for tremendous flexibility for those who are willing to consider breaking a full mediation day into separate pieces. Let’s consider a typical complex commercial case that ordinarily would be booked for one day to highlight the possibilities that result when it is spread it out a bit. First, let’s have the plaintiff give an opening statement. I know these have fallen out of favor, but they did so mainly because they got out of hand and created unneeded tension. Once that happens, it’s difficult to get feathers unruffled and get parties refocused. With a time limit and some guidance from the mediator, plus the fact that there will be a break of a day or longer between this presentation and actual negotiations, these sessions can be very productive. One hour, one day.
Second, let’s have the defense present its rebuttal. One hour, three days later.
The next phase is individual caucuses, which for each side can often take an hour in a complex case, during which time the other side is waiting. I propose that the individual caucuses be scheduled separately but still on the same day, which means the other side doesn’t have to wait around. Two hours for the mediator, one hour each for the two parties (or per party for multi-party cases).
The next day is for negotiations, and all parties must be present for the duration. While this may not be convenient for all parties in an in-person mediation, it is much easier to achieve with a virtual mediation. And if the participants are in vastly different time zones, a virtual arrangement is probably best. If there is a participant in London, another in New York and a third in California, the virtual mediation day will be limited to about four hours. Using this structure, everybody can participate in every phase of the mediation process.
Mediators must be flexible enough to schedule this way. Participants should work out some of this structure in advance among themselves and present it to their chosen mediator or list of mediators to confirm availability. All participants should give each phase of the process their full effort and attention. The submissions and the pre-session calls also present opportunities to confirm how the process will play out and to set expectations for the parties and the mediator regarding participation. If everyone is committed to the process, the momentum of an in-person mediation can be replicated.
This is merely one possibility. With virtual mediations, the process is modular and completely customizable. Sessions can be scheduled in one- or two-hour increments, with no concern for commuting or travel. We can make this work and settle cases during this challenging time.
My colleague, Marc Isserles, has written a very helpful article focusing on asynchronous individual caucuses, which I highly recommend: https://www.jamsadr.com/pdf-viewer.aspx?pdf=/files/uploads/documents/articles/isserles-law360-virtual-caucuses-can-improve-the-mediation-process-2020-05-08.pdf