Adverse Witness
Steve Blount WHO WOULD HAVE IMAGINED? MEDIATION IN A POST-PANDEMIC WORLD AW
Who would have imagined? Mediation by Zoom is working for most… and here’s why. I was recently doing some research as part of my effort to improve my mediation services and stumbled upon a 2010 article entitled “2020 Vision – Where in the World Will Mediation Be in 10 Years?” by Michael Leathes. Mr. Leathes accurately predicted that technology would have an impact, and that logistics and travel would cease being impediments to mediation. His prediction of a gradual incorporation of technology, 3D imaging and Skype may have missed the mark a bit. Who can blame him? How many lawyers/mediators had ever heard of Zoom pre-pandemic? Who would have imagined it would become the “go-to” platform in literally a matter of weeks?
The reaction to Zoom mediations initially was quite dramatic. I have had attorneys refuse to even consider it. Conversely, I have had attorneys refuse to consider anything else. Some predicted it would never work, while others felt it would bring about a permanent end to in-person mediations. To be sure, there are differences in Zoom mediations from in-person mediations. The parties and attorneys must be somewhat comfortable with the technology (it’s really very user-friendly). The mediator must have a mastery of it (and most do now). Questions arise: Will the parties be appearing from their attorney’s office or from their backyard chickee- hut? (Yes, that really happened.) Will the parties connect through their laptop or cell phone? How many breakout rooms to create? What if someone loses Wi-Fi? Is there an electronic signature platform available to execute settlement agreements or other documents and do the parties have the ability to use it? Will an electronic notary be necessary? Parties often behave differently over video. Some attempt to “disengage,” such as strategically using the mute button or stepping out of the video frame as an avoidance mechanism. Also, some people are more comfortable saying certain things by video than in person. Conversely, some are less comfortable. Your mediator needs to be prepared to deal with these eventualities. The remarkable thing about my research is that, while there are many articles out there on Zoom mediation “tips and techniques,” the conclusion I reached is that the same things that made mediation work pre-pandemic, make mediation work by Zoom post-pandemic: Preparation, hard work, patience, and a recognition that self-determination and certainty are almost always preferred over a third party-determined and decidedly uncertain outcome.
September 2020 Vol. 192
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