Virtual mediation: What’s past is present
Wednesday, January 05, 2022 @ 8:33 AM | By Mitchell Rose
In March 2020, I wrote Mediation by Zoom addresses social distancing, shuttered courtrooms in The Lawyer’s Daily, where I addressed the sudden popularity of online dispute resolution (ODR) due to COVID-19. More specifically, I discussed virtual (or remote) mediation and offered practical tips to lawyers desperately getting up to speed on a not-so-new technology — while still adjusting to the decline of the fax machine.
These were the days when I offered lawyers pre-mediation “Zoom tours” to familiarize them with the “future,” including virtual breakout rooms and the painful absence of all-day buffets at mediation facilities.
In conclusion, I wrote:
“… while none of us know how long the current crisis will last, ODR, whether by way of Zoom or other platforms, is probably here to stay. While I don’t believe in-person mediations will disappear, expect that mediations held online, in whole or in part, will be the new normal in a post-COVID-19 world.”
Forgive me for writing “new normal.” It had not yet been banished. Beyond that, not much has changed: We are not living in a post-COVID-19 world, and virtual mediations, especially via Zoom, continue to be the norm
Many lawyers have told me that they have no plans to return to in-person mediation, even when the pandemic that forced them to try virtual mediation has passed. They, like I, cite the following advantages:
- time and cost savings;
- scheduling flexibility;
- the ability to work on other matters when a mediator is not meeting with their side; and
- similar, and, for some, better settlement rates as comparted to in-person mediations.
Yet at this time last year, I anticipated that as COVID cases decreased, vaccination rates increased and restrictions lifted, we would see the rise of “hybrid mediation” — some participants would meet in person with the mediator and others would participate remotely. This was intended to accommodate those who preferred or required both types of attendance.
Fast forward to the second half of 2021: While we returned to indoor classes, dining, concerts and sports, and it felt like the pandemic was nearing its end, I received so few inquiries about scheduling in-person mediations that it wasn’t necessary to raise the hybrid option. At most, I occasionally conducted what I call “half-hybrid” mediations (or “one-third in person,” take your pick) — lawyers would be physically present with their clients, and usually masked and distant, but the mediator remained remote.
It is no surprise then that, even during the halcyon days of October, the courts weren’t ordering in-person attendances. Take the following passage of Justice Frederick Myers from Worsoff v. MTCC 1168, 2021 ONSC 6493:
I do not accept that the pandemic is over so we should all just go back to the way it was. That assumes that the “good old days” were actually good. … Efficiency, affordability, and enhanced access to justice trump counsels’ comfort and presumptions every time.
Then, came omicron and, suddenly, it feels like we are back in March 2020 and 2021. I only hope that all participants remain well enough to participate in virtual mediations, and that they have any required childcare.
While ODR is our recent past, present, and immediate future, I know better than making long-term predictions. The last two years have shown us the folly of doing so — although that doesn’t stop lawyers at mediation from confidently predicting total success at trial. Yet I am reasonably confident we won’t return to in-person mediations this year, nor will they be the default mode beyond that.
I conclude with the past and the lessons learned from the close to two years of conducting virtual mediations:
- Are you still serving a paper brief? Please stop. If for some inexplicable reason your mediator insists on paper, then let them print the sections they want.
- Insert hyperlinks in your e-briefs.
- Take advantage of early start times. Even starting a half hour earlier is advantageous.
- If you and your client deem it wise to participate in the same physical space, then, for private caucuses with a remote mediator, consider sending your client to a separate room with their own computer if they can safely remove their mask there. It is more effective if your mediator can communicate virtually with unmasked participants and/or those who are not spread out in a large room. Your client can move back when the mediator is meeting with the other side(s).
- The “screen share” feature is underused but gaining in popularity. Just be careful about what you are sharing.
- If you believe there is a settlement in principle, then ensure there are signed minutes before you log off. Otherwise, you could end up arguing a motion about whether a settlement was reached in which mediation communications are admissible (see Peres v. Moneta Porcupine Mines Inc., 2021 ONSC 5798). Unfortunately, the convenience of virtual mediations means that parties are more willing to wrap up without the formality of signed minutes. That is why, to protect everyone, my mediation agreement provides that there is no settlement without a signed agreement, and mediation communications are not admissible to enforce a settlement. I recommend you insist on similar language.
- Ensure the other side has signed the mediation agreement before you get underway.
- Finally, if you didn’t ask the mediator if you could say “hello” to opposing counsel, at least ask to say “goodbye.” Staying connected these days is worth the effort.
Mitchell Rose is a mediator and settlement counsel with Rose Dispute Resolution/Mitchell Rose Law in Toronto and can be reached at firstname.lastname@example.org. He is the author of the Lexis Practical Guidance chapter on Virtual Mediation.
Photo credit / marekuliasz ISTOCKPHOTO.COM
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