As many legal professionals know from their own experience, due to the COVID-19 pandemic, many court conferences, depositions and mediations took place from afar. I have attended court conferences and dumps virtually throughout my career as sometimes clients do not want to pay travel time for such proceedings and the courts often allowed the attorney to appear in a distant manner prior to the pandemic. However, I never participated in virtual mediation before the pandemic and I was extremely skeptical that they could be effective. However, recent experience has shown me that virtual mediation can be fruitful under the right circumstances.
In-person mediation is a unique experience, and it is definitely a science to bring all of the parties involved in a case together to discuss a matter. Anyone who has been involved in good mediation knows that an effective mediator doesn't just negotiate with all relevant parties in a room. Indeed, mediation often encompasses a number of different spaces so that the parties can be separated and the mediator can discuss the matter with particular parties at one time or another.
I am willing to bet that many people will also agree that successful personal mediations usually involve snacks and other foods (really good food sometimes!). In fact, I love attending personal mediations at a mediation service's office for the amazing catering they typically do. Intermediary services offices usually look like Silicon Valley startups offices (I've never been to an office like this, but I've seen every episode of the Silicon Valley show), and they may have cold brew on tap and are very expensive. Look for espresso machines to keep people going during the procedure. Of course, eating and drinking with your opponents and fellow advisors can go a long way in relaxing people and solving cases.
Before starting my first mediation on distant resources, I was extremely skeptical of how virtual mediation could be effective in solving cases. I was also incredibly sad that during virtual mediation I would not get as great food and drink as I was used to with personal mediation. However, the virtual mediations that I have participated in so far have been fruitful for several reasons.
For one, mediators still have the ability to move parties in virtual mediations into virtual "rooms", just as parties can be divided into different physical rooms during personal mediation. However, moving people into such rooms is much more efficient as the mediator only clicks a button. This preserves an effective method of mediators that I did not expect when I started my first mediation through Zoom.
In addition, by waiting in a virtual “room” with other parties and during virtual mediation at home or in the office, attorneys can use their time more effectively. Mediation is often a game where you hurry up and wait, as the parties often only spend a fraction of the time with the mediator as the mediator is conferring with various parties involved in the mediation. During personal mediations, lawyers have to wait for the mediator to reach them and the rest of the time is basically wasted. However, if you are in the office or at home during the proceedings, attorneys can catch up on the administrative work, more easily review materials on the mediated case, and complete other tasks. By conducting mediation, the lawyer can be practically more flexible when participating in mediation.
In addition, virtual mediation can enable parties to make better use of their time than if they were present for face-to-face mediation. During face-to-face mediations, the parties have to change rooms, the mediator has to move from room to room, and a lot of time is often wasted. During a virtual mediation, however, nobody has to change rooms, and the mediator can immediately switch from one virtual “room” to another. As many lawyers already know, mediation can be costly. Therefore, any time saved is beneficial for clients and lawyers alike.
In addition, people can connect to each other in virtual mediation just as they can in personal mediation. Lawyers involved in virtual mediation can still talk about the case in person in sidebars and in front of the entire group via Zoom or other similar apps. Sometimes it's also lovely to see lawyers log in from home and from the office so everyone can see a page of those lawyers that isn't always around. During a virtual trial, I saw pets, met significant others, and heard children in the background. This all reminds lawyers that other lawyers are real people, just like them, trying to balance work and personal commitments during the pandemic.
All in all, virtual mediation may not make sense after the pandemic ends, as there are many benefits to having everyone involved in a case in one room. However, virtual mediations still have value and are useful during the ongoing pandemic. The only drawback is that lawyers cannot partake of the fantastic food and drink that are usually offered during virtual mediation in mediation offices. Perhaps mediators can send care packages to mediation participants so they can experience this important part of the mediation process! In any event, virtual mediation enables the parties to discuss a matter in an efficient and effective manner, and the parties should be open to virtual mediation.
Jordan Rothman is a partner at Rothman Law Firm, a full-service law firm in New York and New Jersey. He is also the founder of Student Debt Diaries, a website that discusses how he paid off his student loan. You can contact Jordan by email at jordan@rothmanlawyer.com.
