Lots is being written about the new reality of mediation practice—particularly the advantages (and mainly disadvantages) of the use of Zoom and other videoconferencing platforms. We are each adjusting to the times and striving to improve every day. Still there are larger, more holistic questions about the road ahead for mediators, arbitrators and advocates in these alternative dispute resolution (ADR) processes. They are calling this the “big pause” and ADR certainly went on pause with the outset of the pandemic—now fortunately coming back—but perhaps changed forever until the next boom cycle. Some admittedly anecdotal observations and thoughts about this are:
Everyone’s nerves are shot. Or as my spouse would say our “fuzz is picked off.” We have the mashup of the Covid-19 pandemic and justifiable outrage following the death (or murder) of George Floyd as the emotional backdrop of our ADR work. Trouble focusing, trouble prioritizing, trouble making major (or even small) decisions are understandable by products of our turbulent times. Emotions are running high—and this cultural backdrop plays directly into what’s happening, particularly in mediation. As mediators and advocates, we must stay attuned to these intangibles. At a seminar I attended focusing on the biochemistry of the brain as it relates to conflict resolution, a trendy topic, one speaker memorably stated that we must remember that even the most sophisticated mediation participants are nothing more than a “bag of molecules floating around.” The point being is that our feelings and raw emotions drive the proverbial bus of our decision making—even when have on our game face. This is true for both the clients and the lawyers. So rather than focusing on the icy “metrics’ of a particular case—including technical yet valid legal arguments—organized to persuade the other side to settle, in these times it is more effective to emphasize the benefits of closing out and putting the case in the rear view mirror. When mediating I often use the metaphor that litigation is occupying a portion of everyone’s brain “rent free” and that settling will improve their quality of life almost immediately. Under this approach, the use red faced pressure and coercive tactics by the mediator is disfavored and less generally less effective. Attempting to make the parties cower about the abyss which might lay ahead, if they do not settle, frequently backfires leaving the participants with impressions of bullying and intimidation. That’s not to say a mediator shouldn’t be persistent – but it is all in the delivery and these times favor those with a calm and reassuring demeanor.
Rather than focusing exclusively on the metrics, more than ever, there is the stark reality of power inequities, including gender, race and socio-economic distinctions. And that takes extra effort for those (myself included) who come from a background of privilege. While we don’t typically have much choice about our upbringing, we need to keep the antenna up for these imbalances—and be willing to confront these issues directly in mediation or arbitration as they arise. No doubt that’s easier said than done in some cases where parties are oblivious to this reality but still important to try without being “judgy.”
Setting the tone early in the mediation by helping the parties become comfortable with the process, through your voice and demeanor, is of course more challenging using videoconferencing. Allowing everyone space to breathe and relax, as we know from studies about the biochemistry of the brain, unlocks the amygdala (emotional center of the brain) and enables the prefrontal cortex (center of executive functioning) to do its job.
More than ever before resolving disputes in court is impractical. State courts are currently closed for trials in civil matters and the federal court is allowing trials using videoconferencing. It is unclear when the full opening is to occur. Granted there are some extremely talented settlement judges in Maine—but availability and scheduling are problematic. Mediation becomes a more essential and attractive option than ever before.
Most cases settle in mediation but for those which cannot settle, and we all have had these super tough ones, there is the opportunity to be creative about shifting over to arbitration. One option which makes arbitration flow better is to outsource the videoconferencing so that you are not the master at the helm of the platform software. The court reporting agencies and videographers have deftly transitioned to offering their service as technical facilitators of Zoom type proceedings. They assume responsibility for all technical aspects of the arbitration, such as making sure that everyone has proper Wifi and equipment, arranging for the use of exhibits and separate breakout rooms for the attorneys to speak with their clients and one another. Rough transcripts are typically available shortly after the close of testimony each day. Obviously not all cases will financially support these services but there are still many ways to simplify the arbitration process in terms of the scope, duration and cost. Arbitration is viewed by some as labor intensive and pricy– but it doesn’t have to be that way. With some creative thought and planning the matter can be resolved quickly and efficiently and, most importantly, with parties leaving with the impression that there was a fair process.
Reality Check: People are settling even heavily contested cases themselves. It may be counterintuitive but mediation and arbitration practice is most robust in good times when people have the luxury of discretionary income to fight. With the pandemic and social unrest our tendency is to pull back and lay low on major decision making until the storm passes. We all know that this uncertainty is likely to continue—unlike a snowstorm where we clean up and move forward. Unless mediators, arbitrators and advocates find ways to control their costs, offer flexible scheduling and the use of technology– and demonstrate consistently good results every day– our clients will devise new channels to resolve problems in the virtual world. While mediation and arbitration will likely pick up again once life settles down, our clientele will be looking for innovative and cost efficient ways to process disputes. This is what’s happening with distance learning in the educational field. Norms are being shattered and unless we adapt and change, our clients, as they have every right, will find their own way forward. Many will wisely elect to avoid the hot mess which often goes with litigation altogether—and decide that life is just too short.