Amidst the pandemic, I have seen the legal industry adapt with ease to a technology-driven world, especially one area in particular: virtual mediation. In fact, outside of operating in a remote environment, the mediation process has not changed at all; the only difference is that attorneys are no longer sitting in the same room as their clients and the opposing party.

If there is one positive takeaway from the past nine months, it is that the transition to a remote environment has proven to the legal industry and community that the future of mediation may often times be virtual.

Why are More People Mediating?  
This past year, we have seen an increase in mediations and early mediations without question. The pandemic has led the courts to issue restrictions on conducting matters in-person, leading to a backlog of cases and individuals not having access to in-person trials as they traditionally would. As a result, more people are eager to conclude their cases and are turning to mediation, or in some cases, non-binding arbitration, as an efficient solution. Additionally, judges are also suggesting early mediation especially in the more complex cases, which can take at least 18 months to obtain an initial trial date.

Recently, a friend asked what he should do after he could not get a trial date. I advised him that the only way to speed up the process is if you put together a solid settlement package – and to do his best to mediate the case now.

Prior to COVID-19, other factors such as travel limitations have hindered people’s ability to attend in-person mediations. I was recently involved in a case where the opposing party was in Seattle, his lawyer and my clients were in Miami, and the mediator was in the middle of the State. Through Zoom, we were able to move forward with mediation and resolve the matter, which never would have happened as efficiently if it weren’t for virtual mediation because the opposing party was not willing to travel under normal circumstances.

As a result, more active mediators are busier than ever. People want to get their cases resolved, and they have the opportunity to do it now. 

Benefits of Virtual Mediations
One of the benefits of virtual mediation is that clients are no longer forced to sit in the same room with their adversary. Whether the case is a complex commercial dispute or family matter, opposing parties no longer have to sit staring at one another from across the table or experience the traditional uncomfortable dynamics. Additionally, I have found it easier because the other side can no longer get up and walk away after one side presents their opening statement.

Virtual mediations have also allowed parties to multitask far better than before. Prior to the pandemic, the mediator would hustle back and forth and have private meetings until the very end, so lawyers and clients could spend a significant amount of time waiting in a conference room during the breakout sessions. Now, participants can simply turn off their camera and get other work done while the mediator is in the other Zoom breakout room.

There has also been an increase in time and scheduling efficiency because there are more opportunities to schedule mediations. For example, some people enjoy spending the summer traveling with families, which would make in-person mediation incredibly challenging to coordinate with multiple schedules. Now, the ability to schedule and conduct virtual mediation at the parties’ convenience has improved tremendously.

Lastly, access to expertise is unlimited. Virtual mediation allows clients the ability to work with mediators from other markets who would otherwise be unavailable because of proximity. By conducting mediation remotely, I have been able to set up a recent mediation where our parties are spread across the country.

The Future of Mediation
Through my mediation experience over the past 30 plus years, I have seen the process evolve and how it works through different environments. Looking back at my experience mediating during the pandemic, I have found that maneuvering through Zoom has been seamless and is working very well to all of the party members’ advantage.  

Largely due to the legal industry’s ability to adapt to a virtual environment, our firm has seen a remarkable number of cases resolved through Zoom. With the exception of multi-issue cases where it is absolutely necessary to have a physical presence, I believe the future of mediation in the legal industry will continue in a virtual environment. 

For more assistance with commercial litigation, please contact Kluger Kaplan.