TIME FOR A “NEW” NORMAL

Now that covid may finally have become a manageable fact of life, lawyers are faced with the task of creating a “new normal” for mediation. It is an opportunity that should take us beyond simply to Zoom or not to Zoom to considering how we can improve the mediation process, all the while remembering what was good about normal and what wasn’t.

Are in-person mediations inherently superior to Zoom mediations?

Many lawyers claim the visceral experience of being physically near others in a mediation allows them insight into the minds of those on the other side. That reminds me of George W. Bush’s famous remark about the deep insight he gained by gazing into the eyes of Vladimir Putin. In fact, once the opening remarks are finished, most lawyers are reluctant to remain in the same room as their counterparts and it is unusual for anyone other than the mediator to urge extending the opening session. The actual value of face-to-face negotiation is the subject of extensive research and the jury is still out, so to speak, on its actual impact on outcomes. https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/

This urge to caucus is common whether the parties are in the same conference room or viewing one another on their laptops. The fact that opening remarks are frequently dominated by adversarial and hostile framing does not help. Mediation has become increasingly routinized: mediator’s opening remarks, plaintiff’s opening remarks, defendant’s opening remarks, then caucus. Mediator’s opening remarks are often perfunctory because they are directed to the lawyers, not the parties. Lawyers frequently caucus and then remain separated for most, if not all, of the mediation. Efforts to keep everyone in the same room so that they can build rapport is seldom successful. Blame for this outcome is often placed on the clients but, in my view, it is more often the responsibility of the lawyers. They are not comfortable or confident negotiating across the table and are the first to bolt for the breakout room. For them, close physical proximity is not seen as adding to their negotiating strategy, such as it is. Instead, it provokes anxiety that the negotiations will spiral out of control because they do not know what their client may say or do.  Thus, clients are sidelined or given very limited opportunity to participate, to talk about how they see the controversy and to suggest what a reasonable outcome might look like to them. The foundational notions of client empowerment and self-determination seem almost naïve when the lawyer exerts strict control over the process. Instead of identifying the actual controversy and working to solve the problem, lawyers engage in debates about what a judge or jury is likely to do.

a wide array of factors to Consider

To make a rational decision about the format, in-person or Zoom, it is important to consider a wide array of factors. Some disputes have involved physical or verbal abuse so that a party may be disadvantaged by having to sit in the same room (or even the same location) with the person perceived as the abuser. In situations like this, Zoom can allow a level of participation that might not otherwise be possible.  Other considerations are easier to evaluate. When participants are an airplane ticket apart, transportation costs, including lodging and meals, can encourage virtual attendance by those who would otherwise not attend or attend by phone. Even when the parties are within driving distance of one and other, traffic and parking can add hours of dead time to a mediation. In some situations, efficient use of time can be critical when time off from work and childcare are considered. The ease with which PowerPoint and other low-cost presentation tools can be used effectively is important. Also valuable is the use of relatively inexpensive high-quality equipment that insures a steady, reliable internet connection, a clear, vivid picture and accurate sound. It is important to keep up with the incredible evolution in 3D, a technology that will be adapted for hearings, depositions, arbitrations and mediations.

Consider the movies. When we watch a movie, we expect to engage with what we see (in two dimensions, for now) and what we hear. We experience a range of strong and complex emotions while we relate to the people we see on the screen. No big surprise there. We should not be surprised that mediating online works as effectively as it does.