This article has been published in the PLI Chronicle, https://plus.pli.edu.
Early in the pandemic, I posted a blog with my thoughts on Zoom Mediations. In short, and not surprisingly, as a full-time mediator I was concerned about the impersonalization that threatened the process. My acronym, HINT, provided some guidance to Humanize, Individualize, Navigate, and Triangulate the Zoom Mediation. My hope was that participants, including the mediator, would self-correct for the lack of in-person human contact, which was thought to be the best environment for a successful dialogue. To that extent, I suggested humanizing by interacting with the parties on non-legal matters to create warmth; individualizing the process by ensuring that everyone substantively participates; navigating the discussions to avoid early disengagement; and triangulating the mediation, as may be needed, via one-on-one calls with counsel to address potential impasse.
The mediation process is a delicate one, requiring trust, preparation, and commitment. These important attributes are challenged when participants are not physically together. Participants hoping that a return to in-person proceedings would soon be possible resisted the virtual, computer-facilitated settlement process, leading to delays in engagement. As litigation, and threatened litigation, moved through 2020, it became apparent that the mediation process would not be returning to pre-pandemic normalcy any time soon. As with many analyses, previously considered, once unacceptable virtual options became more attractive, due to both practicality and economics.
The initial resistance was well-founded. Mediators, as well as settlement conference judges, always want the decision-makers “in the room” because negotiations involve emotion and competition, sometimes akin to bidding at an auction where the parties do not want an opportunity to be lost, perhaps forever. Being “in the room” leads to investment in the process, and investment in the process implicates trust and commitment—both going in and while in progress. So, we needed to figure out what to do when no one is actually “in the room.” We absolutely needed to replicate, or at least adequately replace, that emotion in order to achieve the same level of investment. To a lesser extent, the competition component was also impacted by the absence of in-person engagement; the depersonalized virtual environment gave rise to a perception of anonymity and obscured the “sense of urgency” that once existed at these hearings.
Equally challenging was the reluctance and skepticism that was present at mediations many months into the pandemic. Pre-litigation mediations in particular were, and continue to be, challenging because one or more of the counsel and his/her client may not know each other. In fact, due to the pandemic, they may have never personally met. So now you have a process where, potentially, a party does not really know their own attorney, neither knows the mediator, and everyone is probably alone in front of their computers, at different locations, engaging in very serious and often very personal discussions and important deliberations.
Mediations via Zoom involving ongoing litigation, particularly cases for which significant discovery has already occurred, have different challenges. These are closer to traditional in-person mediations and tend to be more fact-based, evaluative sessions with participants that have experienced the struggle of working up the case remotely in an environment where court involvement may have been minimal. In this fact-based environment, remotely taken depositions often leave critical questions of credibility undetermined, in a manner far greater than one would expect. For although credibility factors such as motive and bias can still be explored, when the witness is not being directly confronted, it is somewhat easier to be evasive, or dismissive, of the process. In addition, the pandemic-driven diminished court involvement may have left the parties with gaps in sought-after discovery, causing frustration, friction, and suspicion. These factors combine to drive the parties to a more extreme and less flexible position, thereby also challenging the settlement process.
So, what to do? We begin with the essence of the mediation process: “I am here to help. And you are here because you think I can.” The current reality requires us to add: “Let’s make the most of this opportunity, recognizing that we are all disadvantaged, and circumstances are not likely to materially change any time soon.”
And then we need to recognize the impact of virtual hearings on the process itself. Most mediators describe themselves as having a facilitative, evaluative style—facilitative in that the mediator assists the parties in negotiating; evaluative in that the mediator will express substantive opinions, often as a reality check. In the current environment, facilitative skills play a much greater role in pre-litigation mediations, while evaluative skills are of greater importance in mediations for on-going litigation. Specifically, the facilitative piece must allow for significant direct participation by each of the parties themselves, the real stakeholders in the dispute. Without that direct investment in the process, negotiations become merely a competition to win, rather than a collaborative effort to reach a mutually agreeable resolution. And the evaluative piece must acknowledge that credibility determinations, in this current reality, are significant, perilous unknowns that inject elements of risk and uncertainty that make fair settlements attainable and acceptable. As one realistically assesses risk, there is often a wider range of settlements that are considered fair under the unique circumstances of the case.
Mediation still works. We have all adapted to virtual participation, so “being in the room” now has a much broader meaning. Going forward, there remains a greatly reduced likelihood that a participant will fly across the country to attend a hearing in person, but we have learned to engage and meaningfully participate remotely. This will expand the importance of mediation at all stages of litigation, not limit it.
Similarly, parties are now well-conditioned to receive and act upon important information via teleconferencing, because for the past year they have watched a communication transformation on televisions and smart phones and have lived it with their families and friends. Much like shopping over the internet, we have all learned to make decisions about fair pricing, quality, and trust, which similarly allow for acceptable and successful Zoom mediations, now and in the future.