Challenges to the Mediation Process in a Time of Constant Change

By now we are all too familiar with many of the pros and cons of conducting mediations remotely. Hopefully by the time you read this article, most, if not all, pandemic restrictions will no longer be required and conducting mediations remotely will be a choice, not a requirement. This, however, results in a new dilemma – how will we conduct mediations going forward – In-person? Remotely? Hybrid?

Looking back on how the acceptance of remote hearings came to pass, we remember our initial response to the idea was “Let’s continue hearings for a month until this is over and we are back at the office.” Unfortunately, it became obvious that pandemic restrictions were not going away any time soon. We needed to pivot quickly to technology, conducting our mediations in “virtual rooms” over the internet. This resulted in a new vocabulary such as, “You’re on mute.” “Please turn on your video.” “Can you share your screen?” “Could you stop sharing your screen?” “I can see you, but I can’t hear you.” “I have a problem with the connection.” “You’re frozen.” “Oops, I put you in the wrong room.”

There were, however, some enjoyable side effects resulting from remote mediations. Who didn’t enjoy avoiding bumper-to-bumper traffic? The ability to be comfortable and casual (at least from the waist down) during the hearing? Enjoying meeting people’s pets and children as part of the proceeding? While arguably children and pets could be considered distractions to the process, resulting in a lack of focus on the goal of settlement, I personally found that these “distractions” helped to relieve stress and anxiety for litigants. It gave them the ability to share something personal about themselves, allowing them to control their environment. They were listening and being listened to, and not perceiving that the process was a confrontation to force them into a settlement.

But there were also challenges, such as poor internet connections, resulting in drop offs or freezing; parties being too close together in the same room, each having their own laptop and internet connection, resulting in feedback and echoing. And what about those backdrops covering clutter, but fading the participant into backgrounds of the Golden Gate Bridge, a beautiful beach in Hawaii, or even mockup offices? What about having six people in a conference room with only one laptop or computer screen, making it impossible for the mediator to have direct eye contact with any one individual? And what about finalizing the agreement? We all know the importance of getting a signed settlement agreement before the parties go their separate ways. But since the parties are often in different locations, and some are without the ability to print a settlement agreement, sign it and send them back, it can present a problem.

There are ways to obtain the needed signatures by adding the ability to sign electronically. Since almost everyone has a smartphone today, it allows the participants to receive a signed copy of the agreement before concluding the mediation.

But what about going forward? I believe our future will include both remote mediations and in-person hearings, either being conducted entirely remotely or with everyone returning to the office, or a combination of both. If we do embrace hybrid hearings, what will they look like? Will counsel and their represented parties be present in person while the other side is only remote? Will counsel be present in person, but their clients will be remote? Will this result in insurance adjusters or corporate decision makers continuing to appear remotely, avoiding expensive travel, but allowing a virtual personal appearance? Will the hybrid experience result in its own set of problems, and how can we solve them?

We have all arguably mastered the mediation session where everyone is on Zoom, with separate “rooms” for each side, and each participant seen individually in a “box.” If the hybrid mediation is one where a party, counsel, and other participants for one side are all remote, and the other side’s participants are all in person, there is not much of an issue. The mediator can appear on his or her own computer when meeting with those appearing remotely, and then go into a conference room to meet in person with the other side. But what if it is a combination of in-person and remote appearances for one side, or for each side? For example, what if counsel are present at the mediator’s office, but their clients (or some of them) are remote at different locations? It will be necessary to make sure litigants are each able to speak directly with the mediator while she is on her laptop, and also to have the privacy of speaking with their counsel on a different laptop. Otherwise, when the mediator takes her laptop to the other side’s conference room to talk to any participants who are appearing remotely, counsel will not be able to privately meet with his/her clients or adjusters except by phone until the mediator returns.

As before, there will be a learning curve and a time of adjustment for all of us, but it is my belief that the flexibility and resourcefulness of mediators and counsel will again rise to the occasion. I think to help make hybrid mediations successful it would be helpful to have pre-mediation communications between counsel and the mediator, perhaps with the mediator providing a protocol indicating what has, and has not, worked when conducting hybrid mediations.

We will all remember 2020 and 2021 as pivotal years in our working and personal lives. For many it has resulted in changes that we thought were fleeting and temporary, only to learn that many of these changes are here to stay in some form or another. Virtual and hybrid mediations are likely two of them.