No doubt video improves the ability to communicate in the negotiation process whether in mediation or with direct negotiations. Video court proceedings have successfully emerged as a productive and efficient way of handling civil and even criminal court proceedings. And in my view, they have, and will, improve our ability to mediate by providing a more efficient and less costly way of resolving cases. Client, counsel, insurance representatives, and even witnesses (who can be used in mediations more with remote appearances) will not need to travel for mediations, which will save time and money. Thus, the remote mediation process may well become the primary means of mediating cases, particularly where the parties are at different locations. Even when they are not, a remote mediation avoids travel of short range. The convenience of mediating remotely likely will be seen as efficient in even in the circumstances of those who are relatively close by.
The question, aside from how remote proceedings will affect other aspects of the civil and criminal practice, is: Is the advent of these remote proceedings (“The Zoom Mediation”) a positive or a negative? In my view this is an overwhelming positive, with some limitations. Yet, the “jury is out” as to how these proceedings will be conducted in the future. That is, we need to learn by “trial and error” and experimentation to fashion a set of guidelines for how we can best utilize this method to achieve a successful result for our clients.
We also need to see how the remote platform affects settlement and in particular the process of mediation itself.
As the mediation process has evolved, it seems well suited to the virtual or remote venue. The remote process is actually similar to what usually occurs anyway. In the normal circumstance of an in-person mediation, we arrive at a location and are sent to our respective “rooms” to await further developments. Many times there is no joint session beforehand – or at all. The mediator does all the work going back and forth between or among the parties in separate caucus sessions. Even if there is a joint session via Zoom, it can be done by bringing the parties and counsel into the “room” for a joint session. From this perspective a remote format does not seem to be an impediment to the mediation process.
The concept of virtual attendance may pose some psychological hurdles for those who are more traditional and believe that cases cannot settle without personal attendance. In my experience, both in the longer and shorter term (after the Pandemic), this reluctance has diminished with counsel as they have gotten used to using this format for meetings of all sorts. Some may be intimidated by the technical aspects of a remote mediation, but they should not be. The various video remote platforms are easy to use and reliable. Further, most mediation services and regular mediators have worked through any glitches and are prepared to offer easy to use platforms for remote mediations.
So, my point is: What’s the big deal? How does the remote process differ in any significant respect? Indeed, remote mediations may very well become the preferred method for mediating because of their convenience.
So — Let’s take advantage of this remote option and get to mediating.
This short article is taken from a chapter, “Handling Remote Mediations Pre and Post COVID-19” from Mr. Kornblum’s book, “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomason Reuters Publishing Company. The Fifth Edition of this book will be released later in 2021.