The third wave lawyer and alternative dispute resolution
Monday, June 07, 2021 @ 2:13 PM | By Daniela Corapi
When the first wave lockdown fell upon us, stay-at-home orders submersed much of the legal profession into home living space. The profession had to pivot and adapt to preserve litigation momentum during lockdown measures. In the ecological context, adaptability has been described as the “ability to cope with unexpected disturbances in the environment.” When we examine how the legal system adapted under these orders, the implementation of technological solutions certainly contributed to the prevention of the derailment of proceedings, as did the digitalization of many procedures and forms. The legal community worked assiduously to not only embrace technology, but thrive with it.
When third wave lockdown measures rolled out, the profession was primed and had the bandwidth to sustain the current storm. Wisdom prevailed — as did collaborative interest. Much of the technology which was adopted during the first wave was tried and tested and recognized as reliable. Adjourning a critical file event, such as mediation, was not a desirable option; neither was delay. Virtual mediation proved to be an effective tool in previous lockdowns and remained an efficient option.
At first glance, virtual mediation provides parties who are involved in litigation with the ability to ensure the continuity of file progression. However, we would be remiss to not pause and consider the utility of screen sharing beyond the tangible benefit of being able to fulfil mandatory litigation steps. How well have virtual platforms performed as a tool to re-create the notional “negotiation table,” over and above the bringing of participants together? Has the virtual forum elevated negotiation?
Third wave virtual mediation looks and feels different. Remote deal making, platform navigation and technical jargon has become familiar and instinctual among both lawyers and their clients. A new forum to facilitate collaboration has emerged and has proved to be an acceptable alternative to in-person meditation. Virtual mediation has enhanced mediation efficacy in many contexts, so much so that it is increasingly difficult to imagine a post-lockdown world without a full or hybrid option of virtual mediation.
While the shift to virtual platforms was not without challenge, it has contributed to the development of a unique dimension of bargaining. Virtual mediation has bred a new flavour of collaboration — one which can be characterized as empathetic, conducive to relationship-building between participants and is underpinned by empathy and reciprocity, respectively. There is a case to be made that increased collaboration directly promotes reciprocity in negotiation. Reciprocity is a powerful norm; “when your counterpart makes a concession, you are likely to feel an urge to reciprocate.” (American negotiation expert David A. Lax)
A successful mediation involves the rebuilding of trust and restoring of relationships between participants. Carrying out professional obligations from your home environment unveils characteristics of shared humanness between participants that would not otherwise be visible. During virtual mediations, it is not uncommon for opening statements to be prefaced by unexpected pet cameos, child debuts and technology mishaps. These moments elicit smiles, momentary laughter or shared frustration, all of which soften the rigidity of what may sometimes feel like a polarizing environment. These momentary diversions often diffuse, redirect and reset discussions. As mundane as these examples sound, this snapshot of humanness serves to cut tension in emotionally charged discussions and promote empathy.
As a mediator, I have observed that the aforementioned virtual diversions inspire gestures of courtesy and understanding between participants. For instance, parties instinctively agree to indulgences or offer impromptu assistance with technology-related questions. These gestures have bolstered rapport-building opportunities between participants. These moments also serve to de-escalate discussions and increase communication opportunities. The ability to connect by way of shared human experience inspires openness, openmindedness and propels concession-making. It’s in this virtual space that a unique form of effective bargaining has transpired.
The physical cues that virtual mediation puts on display have resulted in an increased shift towards integrative bargaining. Virtual negotiation promotes empathy and collaboration, which is less conducive to hard-bargaining tactics and strategies. In many ways, we as a profession have brought practice into our homes, and by extension, more empathy and personality into our practice — and to this extent, we are all better for it.
Daniela T. Corapi is an experienced mediator, lawyer, adjudicator and prosecutor. She has extensive litigation experience, both in private practice and as corporate counsel and is committed to providing clients with an effective and practical approach to litigation and alternative dispute resolution. Her experience covers a wide range of civil litigation, regulatory and administrative law matters. She obtained Certification in Negotiation & Leadership from Harvard Law School, Program on Negotiation.
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