Disputes are not likely to disappear in this pandemic.  However, the manner is which disputes are resolved is already changing dramatically.  Courts are essentially closed to civil trials.  Existing trial dates for cases that are pending have all been continued with continuation dates that are themselves uncertain.  So too have hearings for filed arbitrations been continued with the same attendant uncertainty. 

These repercussions, coupled with massive business closures and pervasive self -quarantine required in almost every state, perhaps only leaves room for Online Dispute Resolution as a practical dispute resolution vehicle. In person mediation has effectively vanished.  This has been replaced by either telephonic mediation or video conferencing.  With either medium, more in the way of client preparation is required of party attorneys and mediators. 

Experience has shown that this challenge may be eased by the mediator spending more pre-mediation time conferring with parties and attorneys. Listed below are some helpful tips I have learned through my experiences with telephonic mediation or video conferencing. It is my opinion and recommendation to think about the following PRE-meditation:

  1. Lawyers need to be sure that their clients are comfortable with video conferencing technology. Mediations are usually stressful events for parties.  That stress shouldn’t be exacerbated by technology glitches on mediation day.  Pre-mediation practice with the designated technology is essential.
  2. I have found that during mediation via video conference attorneys and clients tend to be in different locations, not all of which are video accessible. Under these circumstances, additional time in mediation might be necessary. 
  3. It is helpful for the mediator if counsel submits written mediation materials to the mediator sooner than the day before the event. From experience, it seems a 3-5 days is optimal.

In the proper hands and with attorneys and mediators applying extra effort to communicate with parties, online mediation is still effective.  The question though, is not so much whether technology aided mediation can work effectively, but rather if after the pandemic ends, will there be a wholesale return to in person mediation at all?

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