As numerous people within the legal profession know from firsthand experience, many court conferences, depositions, and mediations have been occurring remotely because of the COVID-19 pandemic. I have attended court conferences and depositions virtually throughout my career, since clients sometimes do not wish to pay travel time for such proceedings, and courts often permitted counsel to appear by remote means before the pandemic. However, I never participated in a virtual mediation prior to the pandemic, and I was extremely skeptical that they could be effective. Nevertheless, recent experiences have shown me that virtual mediations can be fruitful in the right circumstances.
In-person mediations are a unique experience, and there is definitely a science around getting all parties involved in a case together to discuss a matter. Anyone who has been involved with a good mediation knows that an effective mediator does not just hold proceedings in one room with all relevant parties. In fact, mediations often involve a number of different rooms, so the parties can be separated and the mediator can discuss matters with certain parties at one time or another.
I am willing to bet that many people will also agree that successful in-person mediations usually involve snacks and other food (sometimes, really good food!). In fact, I love attending in-person mediations at the office of a mediation service for the amazing catered food that they typically provide. The offices of mediation services usually look like offices of Silicon Valley startups (I’ve never been to such an office, but I’ve seen every episode of the show Silicon Valley), and they may have cold brew on tap and really expensive-looking espresso machines to keep people powering through the proceedings. Of course, eating and drinking with your adversaries and co-counsel can go a long way toward relaxing people and leading to the resolution of cases.
Before beginning my first few mediations through remote means, I was extremely skeptical about how virtual mediations could be effective at resolving cases. I was also incredibly sad that I would not be provided amazing food and drinks during virtual mediations like I was used to receiving during in-person mediations. However, the virtual mediations I have participated in so far have been fruitful for a number of reasons.
For one, mediators still have the ability to move parties in virtual mediations into virtual “rooms” just like parties may be separated into different physical rooms during an in-person mediation. However, the process of moving people into such spaces is much more efficient, since the mediator just clicks a button. This preserves one effective method of mediators, which I was not expecting when I began my first mediation by Zoom.
In addition, waiting in a virtual “room” with other parties, and being in your home or office during a virtual mediation, can help attorneys more effectively use their time. Mediations are often a game of “hurry up and wait” as parties often only spend a fraction of the time with the mediator as the mediator confers with various parties associated with the mediation. During in-person mediations, attorneys need to wait for the mediator to get to them, and the rest of the time is basically unused. However, being in the office or at home during the proceedings may empower attorneys to catch up on administrative work, more easily review materials related to the case that is being mediated, and complete other tasks. Conducting mediations virtually allows attorney to be much more flexible with their participation in a mediation.
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Moreover, virtual mediations may allow parties to better use their time than if they were present at in-person mediations. During in-person mediations, parties need to change rooms, the mediator needs to move from room to room, and there is often a substantial amount of wasted time. However, during a virtual mediation, no one needs to change rooms, and the mediator can instantly move from one virtual “room” to another. As many people within the legal profession already know, mediations can be costly, so any time saved is beneficial to clients and attorneys alike.
Also, people can still bond with each other at virtual mediations just like they can during in-person mediations. Attorneys involved in virtual mediations can still talk about the case in sidebars and in front of the entire group through Zoom or other similar apps just like in person. Also, it is sometimes endearing to see attorneys logging in from their homes and offices, which lets everyone see a side of these lawyers that is not always present. During virtual proceedings, I have seen pets, met significant others, and heard children in the background, and this all helps remind attorneys that other lawyers are real people just like them trying to juggle work and personal obligations during the pandemic.
All told, virtual mediations may not make sense after the pandemic subsides, since there are many benefits to getting all parties to a case in one room. However, virtual mediations still have value and are useful during the ongoing pandemic. The only downside is that attorneys cannot partake in the amazing food and drinks usually offered at mediation service offices during virtual mediations. Perhaps mediators can mail care packages to mediation participants so they can experience this important part of the mediation process! In any case, virtual mediations allow parties to discuss a matter in an efficient and effective way, and parties should be open to holding virtual mediations.