Online Mediation in the Age of COVID-19

Many of the reasons for using online mediation in 2020 are unique to the time in which we live. While I began offering online mediation more than a year ago, it was, until very recently, a very hard sell versus conventional, in-person mediation. Were it not for the potentially deadly consequences of sitting next to and across the table from the others involved in a mediation, I would probably not be writing this article.

“As the coronavirus made its rapid and implacable advance across the United States, forcing sweeping closures of schools and work places [and courthouses] and bringing about the disappearance of any type of collective, real-world activity, it became obvious that a new era had begun.” [1] Many of the assumptions pertaining to in-person mediations have never really been tested before our new era began. And replacing face to face human interaction with virtual face to face contact represents a sea change for our justice system. With the passage of time and the accumulation of experience, there will be a sorting out and we will, I think, be left with a revitalized way of mediating disputes. Now seems an ideal time to thoughtfully test our assumptions with the intention of keeping the ones that work and discarding the ones that do not.

Online Mediation actually predates, by years, the novel coronavirus. It was originally thought of as a way of bringing the justice system to citizens who could not get to the place where the rule of law was resident. Online mediation relies on the fact that cell phones are ubiquitous in the world, even for people who struggle to meet the most basic of human needs. With a cell phone and then with smart phones, human rights groups helped develop technology that, for the first time, brought the justice system to the people.

Another incubator for online dispute resolution has been e-commerce. Very early in the development of online companies like eBay and Amazon, they were forced to respond to a volume of disputes with their customers and business partners that would have overwhelmed a conventional customer service operation. As a result, these companies looked to artificial intelligence and other technologies to develop algorithms that could resolve disputes in ways that took into account vast amounts of experience expressed as data, and settled disputes in ways that seemed to human customers fair and reasonable.

In the early 2000’s, Skype entered the online meeting market, followed in short order by Google Hangouts, FaceTime, WhatsApp and others. Believe it or not, Zoom has been around since 2013 and went public only in April, 2019. The corona-virus hit in January, 2020; Zoom went from ten million daily users in December, 2019, to two hundred million daily users in March, 2020.

The first assumption to examine is the need for physical proximity in order to communicate effectively. The beginning of a mediation is typically taken up by the mediator’s explanation of the process and the lawyers’ outlines of their view of the case. So far, there seems little signal loss coming from the use of a computer screen. Speaking only from my experience, the parties typically spend the great majority of the mediation sequestered in their caucus rooms talking privately to the mediator. It is a heavy lift for a mediator to persuade the lawyers to remain in the same room for very long because of their widely shared fear that face-to-face negotiation will spin out of control because what they have to say cannot be communicated without setting the other side’s hair on fire. e.g. “This is my only opportunity to talk directly to you. I may say some things that upset you but don’t take them personally.”

Next, there is the challenge of agreeing on a physical location for the mediation that does not inherently advantage one party over the other. Having the mediation in a lawyer’s office carries with it logistical hurdles, e.g. parties quarantined to a conference room and a bathroom with the other side free to move about while the host lawyer is free to work on other matters during the caucuses. There is also the feeling of vulnerability merely by being in the enemy’s camp.

The Zoom alternative puts the lawyers in a familiar space with ready access to their files and staff. They can employ technology to fortify their negotiating in ways that might be challenging away from their office. They can easily confer privately with their clients, with or without the online mediator. And not to turn this essay into an environmental manifesto, online mediation also cuts down on commuting time, parking, and other issues I’ll leave to Michael Moore.

In the same vein, and as the BBC video illustrates, being home in familiar surroundings can go a long way in humanizing the presenter and reducing clients’ apprehension and unease.

Let’s not assume that litigants are comfortable negotiating across the table from someone with whom they are mired in controversy. For many, mediation is an unfamiliar, stressful and anxiety provoking experience. Physical proximity is not necessarily a plus for everyone.

Further, one of the keystones of mediation is the requirement that the decision maker(s) participate in the negotiation in a meaningful way. In real world mediations, that requirement is often ignored for reasons easily addressed in an online mediation. Many organizations wind up in litigation or other controversies far from home. For now, business travel is dangerous; at another time, it will simply be expensive and time consuming. The rules do not require any more than the decision makers participate and what better way to do that than virtually from their own office.

What is truly unprecedented about this moment we find ourselves in today is the depth and breadth of the changes that have already happened. Current events have created an imperative to recognize and implement improvements to the services we provide, including online mediation. Let’s not waste the opportunity.

[1] https://www.newyorker.com/magazine/2020/04/27/embracing-the-chaotic-side-of-zoom