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How The Pandemic Changed Mediation - CMBA News and Information

CMBA Updates & Legal News


Posted by: Thomas Repicky on Jul 20, 2021
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The pandemic changed our daily lives at work and home. Video and audio conferences replaced most face-to-face meetings including mediations. Now there is much anticipation and hope that face-to-face meetings will begin again since more of the population is being vaccinated. However, it is unlikely that all mediations will revert back to the pre-pandemic model. While It is difficult to predict the future, it is likely that mediation will continue to evolve. I will review some of the ways mediation might change in the future.

In-Person Model

Certainly, many mediations will revert back to in-person settings with the parties present. Parties remain comfortable with the in-person mediation model. There are many reasons to conduct mediations in person. Both verbal and nonverbal communication are generally more effective in person. It is also easier to establish rapport and deal with emotional parties in person. Moreover, in-person mediations provide a flexible setting where both the parties and mediator can effectively address their issues during the mediation.  It is also easier to review documents and records in person. However, sometimes necessary attendees do not attend the mediation which can adversely affect the mediation.

In-person mediations eliminate problems with technology and other issues that can arise with video conferencing platforms such as Zoom. Those issues include internet problems by the parties, lack of cameras in computers used by some participants, persons inadvertently talking over each other during the mediation, and too many faces appearing in the gallery view making it difficult to follow in a multi-party case. Unfortunately, sometimes the parties lose focus during a Zoom mediation since they are not on-site and may be otherwise preoccupied at their location. In addition, some of the parties may not be comfortable with the technology.

Hybrid Model

It is apparent that even in the “in-person mediation model” there are some mediations that would benefit from some use of Zoom or other video conferencing. More often than we would like, insurance adjusters, company representatives or other necessary attendees fail to attend the mediation in person but are “available by phone.” These necessary parties who cannot attend in person, could attend the in-person mediation by video conference. This is more realistic and acceptable now because of our Zoom mediation experiences over the last year. This “Hybrid model” would ensure the presence of necessary attendees who often cannot attend because of time, expense or travel.

Clearly, the “hybrid approach” will involve a learning curve for participants not dissimilar to what occurred in our Zoom transformation.  Of course, planning, preparation and discussion of this approach by the parties and mediator is necessary to address any technological or other issues pertinent to each mediation.

The Hybrid Model offers the advantages of In-Person and Zoom mediations while minimizing the disadvantages and limitations of each model when used separately. I anticipate that in future mediations, both the parties and mediators will use their recent Zoom mediation experiences and past in-person mediations to fashion their own hybrid mediation process. Such creative processes could provide for more effective mediation settings to address the specific needs of a particular mediation.

Zoom Model (Video Conferencing)

It should not surprise attorneys that some mediations will continue to be conducted by video conferencing in the future. The last year has taught us that Zoom mediations are often very effective. In fact, some parties may prefer the Zoom mediation over in-person for reasons of cost, less travel and adaptation to the process. All parties and necessary attendees can more easily attend a Zoom mediation than an in-person mediation. In some Zoom mediations, a party and their counsel may meet together in person and attend the Zoom from one location.  In other Zoom mediations, all the attendees may be attending from separate locations. In both situations, Zoom technology allows for opening sessions, caucuses and other necessary communication during mediation. It is likely that Zoom technology will continue to improve, so this model’s use will continue to evolve.

Certainly, some mediations are better suited to the in-person process. Having experienced both Zoom and In-person mediations, mediators and parties are now able to make an informed decision on the suitability of Zoom video conferencing for their mediation. Parties should discuss their case with counsel and the mediator to determine beforehand whether Zoom mediation is suitable for their case.

Parties also have to consider that not everyone has a camera on their computer. As a result, some Zoom mediations are really a combination of audio and video conferencing. Because of the potential for interruption in a Zoom mediation due to problems with the Zoom platform or any internet or computer issue by attendees, I always have in place a back-up teleconference number for the mediation. This avoids the risk of a mediation conducted by Zoom being completely shut down unexpectedly. Several times my Zoom meditations were interrupted by technological issues forcing the mediation to continue by audioconferencing.

Teleconferencing Model

Teleconferencing or audio conferencing is another model to consider for your mediation. Certainly, audio conferencing mediations present communication challenges but surprisingly, they can be effective in two-party cases that are not complex. It is even more imperative that pre-mediation planning for these mediations take place. The parties and mediator can discuss how to structure the mediation, and what information, documents etc. will be needed at the mediation. Joint and/or separate telephone conferences with each party before the mediation provides this opportunity. Such planning should ensure that the parties have the documents and information that they need during the mediation.

Teleconferencing does allow parties to caucus when necessary. Services such as Conference America and use of additional landlines or cell phones can serve as an effective communication network for the mediation. However, this needs to be planned for before the mediation.  In some cases, parties feel more comfortable with this model than the in-person or video conferencing model. I have conducted over 50 teleconferencing mediations and have learned that with proper case selection and pre-mediation preparation and planning, such mediations can be effective.

Summary

As a result of pandemic protocols, different mediation models have emerged and proven successful. If there has been any silver lining with regard to the pandemic lockdown and mediation, it has been the knowledge and skills we have learned and the experiences (both positive and negative) we have gained. This mediation expertise was gained because we were forced to use different approaches and models in mediation. As a result, mediation participants are more comfortable using the models that were not used pre-pandemic.

Knowing what we know now about the various models and their individual strengths and weaknesses, mediators and parties should give careful consideration to which model or combination of models will work best for them based on their situation, goals, and preferences. Furthermore, all mediation participants should appreciate and recognize that mediations often go beyond a one-day session. Pre mediation planning and preparation along with post mediation follow-up by the mediator transforms mediation into a longer and more effective process.  

In addition, attorneys need to remember that many parties have never participated in mediation and may not be familiar with the foregoing mediation models. Therefore, additional discussions and explanations may be necessary to determine the right approach and to make sure the parties are comfortable and ready to participate. The availability of these different models will make mediation more accessible, offer choices that weren’t previously available, and improve the effectiveness and efficiency of mediation. No longer will mediation fit into the mediation model that existed before the pandemic. 

Thomas Repicky has been a CMBA member since 1980. He was certified as a Civil Trial Advocate by the National Board of Trial Advocacy for 20 years. He is currently a member of the National Academy of Distinguished Neutrals and has been recognized since 2010 in Mediation as both an Ohio Super Lawyer and Best Lawyers in America. He has mediated over 1700 cases.

 

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