Mediation - "The COVID-19 Edition"Written by Keely Y. Scott The COVID-19 pandemic has massively impacted all aspects of our lives. With a state-wide Stay Home Order and the social distancing required to curb this crisis, we have all quickly adapted to a new normal including telephone and video chat holidays, family gatherings, school classes and workplace meetings. The legal world is not insulated from the crisis and we too must adapt to a new normal and continue to diligently represent our clients during this worldwide pandemic. Litigation activities that traditionally involve direct interaction with other parties, such as trials, hearings, depositions, site inspections, etc. have either been postponed until the crisis abates or converted to a more creative and remote platform that allows business to proceed. Mediation is no exception. Mediation has always served a great purpose in conflict and litigation resolution. In fact, mediation, even conducted under a contingency plan, may serve an even greater purpose today. In the face of COVID-19, at a time when so many courts are not conducting in-person hearings and are postponing trials, finding a way to conduct online or telephone mediations becomes essential for many parties and attorneys to conclude litigation and financial risks and to continue their personal lives and businesses. In considering whether to move forward with a remote mediation, attorneys must evaluate the new incentives and leverage positions that arise out of the current crisis. For example, litigation becomes less of a threat to some parties when hearings and trials are cancelled. Yet, anticipated docket congestion resulting from the Stay Home Order and the accompanying unknown delay of litigation resolution makes personal and business planning for the parties extremely difficult. For many parties there is also a greater need for immediate funds caused by workplace furloughs and layoffs which may give both incentive and leverage to mediate where it did not exist before. Additionally, a defendant party’s solvency or decreased ability to satisfy a judgment caused by the economic fallout of nationwide Stay Home Orders may also affect the decision to mediate now rather than waiting until the crisis ends. Under these circumstances, mediation offers certainty and resolution which are valuable commodities in the current COVID-19 climate. In making a strategic decision on whether to recommend a case for remote mediation, it is important to note that attorney, client, and mediator schedules are now more flexible as calendars have cleared. As a bonus, the costs associated with travel and in-person attendance are eliminated. Once a remote mediation is scheduled, the parties will have additional options to facilitate a successful mediation including video conferencing, telephone conferencing, or a combination of both. Traditionally, mediation is most effective in person, with all decision makers physically present. It is very important to be able to see people during the mediation to develop trust and rapport, and to read and evaluate expressions during the process. Humans by nature connect with each other and evaluate one another in various ways, but eye contact and body language are especially important visual cues that can assist in negotiation and in ultimately reaching a resolution. Yet, during this crisis mediations by video conference and even via telephone conference, have proven to be very effective in getting the job done. Online tools, such as WebEx and Zoom have satisfied that "in-person" touch that so many mediators and participants need because they allow the parties to hear and see each other “live” via webcams. These programs also allow for separate sessions to be created, thereby mimicking the joint and private caucuses most attorneys have come to value in traditional mediation settings. It is important to remember that not everyone is comfortable with or is even trusting of this technology; some parties may not have the means to implement video conferencing. Under these circumstances, a diligent attorney must consider whether a telephone mediation is a viable effective solution, especially if their client(s) could benefit from timely resolution of the litigation during this unprecedented crisis. Tips to follow when preparing for and participating in a COVID-19 remote mediation:
Hopefully, the challenges we are facing brought on by the COVID-19 pandemic diminishes over the short term but right now none of us truly knows what the future holds. What we do know, however, is that litigation impacts the lives of many people and businesses. For many clients now is the exact right time to mediate to resolve pending litigation and to offer some degree of closure and financial resolution in these unsettling times. Keely Y. Scott is a Mediator with Perry Dampf Dispute Solutions and a Partner with Donohue, Patrick & Scott PLLC |