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Chatting About Online Mediations

Is it the beginning of the end, or the end of the beginning?

July 19, 2021 Photo

Zoom mediations have been a reality in claims-related litigation for more than a year now, but is there a future for this emergent technology? Haralyn Isaac, vice president, claims, for the executive liability division of Great American Insurance Company (hisaac@gaig.com), and Keith Gutstein, partner at Kaufman Dolowich & Voluck and co-chair of his firm’s labor and employment law group (kgutstein@kdvlaw.com), give us their thoughts. 

Haralyn Isaac: In the early days of the pandemic, counsel, judges, and litigants stayed matters until proceedings could be done in person. However, after some months, the return to “in-person” proceedings remained questionable. Zoom mediations then started to heat up. Was that your experience?

Keith Gutstein: There was great uncertainty at the onset of the pandemic as to when in-person mediations would resume, since indefinite adjournments could only last so long. Ultimately, an answer to this question was needed: Does the practice of law come to a prolonged standstill, or do litigants find another forum to mediate their disputes? Thus, Zoom mediations were born. Like others, I didn’t know what Zoom was or how it worked at the time. Though learning it initially seemed daunting, it proved to be an easy-to-use technology and an effective system.

Haralyn Isaac: I look at the pros and cons of Zoom mediation through the eyes of an insurance claims professional, while you look at the topic from a defense attorney’s perspective, but we both have talked with mediators, insurance coverage counsel, and plaintiffs’ attorneys to round out our discussion. Everyone I spoke to believes Zoom mediations, in some form, are here to stay.

Keith Gutstein: Agreed. According to two prominent mediators, Ruth Raisfeld (Alternative Dispute Resolution Services) and Marty Scheinman (Scheinman Arbitration and Mediation Services), there is a shared feeling that virtual mediations are now fixtures. These mediators said they wouldn’t be surprised if it becomes the preferred method of dispute resolution moving forward, given the benefits associated with it, such as cost savings.

Haralyn Isaac: The biggest negative, according to well-known mediator Jeff Kichaven, seems to be the technology itself. Mediators and businesses quickly figured out how to work Zoom fairly seamlessly. However, anyone can experience issues with Wi-Fi, or their environment can result in disruptions, especially for individuals working from home. Typically, the inconvenience is temporary and can be fixed, but it is a negative. Other than saving the time and expense of travel, what do you think are the biggest positives?

Keith Gutstein: It is the convenience and efficiency. For example, both Raisfeld and Scheinman state that, prior to Zoom, mediations were occasionally attended by representatives of the ultimate decision-makers, who would then call the decision-maker when issues arose or if a commitment was needed for a final resolution. This caused undue delays, and occasionally the message was inaccurately delivered, further impeding resolution. Now, with a click of a Zoom link, the otherwise preoccupied primary decision-maker can join the mediation and speak with the mediator directly. The face-to-face interaction on Zoom is more effective than just getting someone on the telephone.

Haralyn Isaac: Another benefit is that the parties can use a mediator from anywhere in the country, without traveling to the mediator or having the mediator fly in. This might open up earlier mediation dates or allow the parties to consider using a mediator with a particular expertise, since travel costs aren’t a concern.

I’ve also learned that some issues I thought were negatives about Zoom may, in fact, be positives in certain cases. For example, some of us thought that, in a Zoom mediation, the parties involved might not feel the pressure that is brought to bear when sitting in an all-day mediation in an office. The mediator and others make repeated pushes to settle, often highlighting the negatives of the case. When this is done in-person, it can be disconcerting and exhausting, and this “discomfort” can work to encourage a settlement. However, Kichaven thinks the opposite may be true. When plaintiffs or defendants are in their own homes, they are more relaxed and may actually be more receptive to settlement. They aren’t as nervous and may listen more attentively.

Keith Gutstein: Both Raisfeld and Scheinman say Zoom may give mediators the ability to read the parties better and gain personal insights into their lives. For example, according to Raisfeld, because parties are often looking directly into the camera for prolonged periods of time, she is able to read them more effectively and gauge reactions to settlement offers and the factual arguments being presented. Scheinman added that the location where plaintiffs are situated during the mediation can also be beneficial. When plaintiffs are in their own homes during a mediation, Scheinman says he can catch glimpses of photographs on the wall, and pets in the background. Scheinman says exposure to these personal items allows him to form a connection with plaintiffs, which creates trust and sets the table for a more successful mediation. In-person mediations held in a sterile and impersonal professional office setting may not provide the opportunity to build this type of connection.

Haralyn Isaac: That can be true. However, for meditations dealing with sensitive personal issues and information, some mediators believe that the live, personal touch is necessary and can make a difference. So, we really can see both sides of the coin here.

What do you think the Zoom-versus-in-person framework will look like going forward? What is the preference of mediators and counsel? I know the cost savings likely will be a big driver for insurers.

Keith Gutstein: It seems that there is a good chance Zoom mediations will be the rule going forward for some participants. It saves money, is more convenient, and some believe it has essentially the same likelihood of success as in-person mediations (although this is difficult to substantiate). That being said, there will undoubtedly be cases where the parties will prefer in-person mediations, either because of a fondness for personal interaction or as a strategic decision. For example, in matters where the parties are better served by having the plaintiff face the alleged wrongdoer in order to achieve catharsis for the plaintiff, Zoom may be inadvisable.

Haralyn Isaac: In addition, when the parties invest less in the process, they may be less invested in reaching a settlement. Also, according to one mediator I spoke with, Zoom mediations will be a good alternative for matters involving a limited number of participants. However, for “mega” mediations with large numbers of attendees, the process can suffer online. In such instances where so many people have to be on screen, it can be difficult for everyone to meaningfully participate. In addition, some participants worry about the security and confidentiality of Zoom.

Keith Gutstein: There are definitely benefits to in-person mediations that cannot be ignored. In an in-person mediation, the “down time” an attorney gets to spend with the client is invaluable, not only for fortifying relationships, but also for the informal banter that creates trust and comfort.

Haralyn Isaac: I agree. The mediation is typically the only time the insurer will meet the insured. During the course of the mediation, we can develop a rapport and teamwork approach, which can help increase buy-in from the insured and make them feel better about settling a case.

Keith Gutstein: In addition, in-person mediations allow for the incidental conversations that take place between counsel by the restroom or snack basket. Both defense and plaintiffs’ attorneys feel those critical conversations can help break a stalemate and get the parties on track towards a resolution.

Haralyn Isaac: Mediators agree that catching a participant in the hall and having a sidebar can be a large part of their strategy to work toward settlement. These meetings are often truly accidental (or sometimes accidental on purpose). These discussions just don’t work the same in Zoom. So, some folks, like coverage counsel I spoke with, wonder if you will get the mediator’s “A” game if the process isn’t in-person.

Another benefit of Zoom is that it can continue longer than a typical mediation. Nobody has to catch a plane to get home to family. That can mean working until a settlement is reached. On the other hand, as one mediator pointed out, you lose the pressure that comes to bear when someone (often the insurer) has to leave to catch a plane. The time pressure often results in the parties getting focused and progressing toward settlement.

While there is no definitive answer as to the better forum, Zoom or in-person, what is certain is that there will forever be another factor to consider before mediating. In addition to discussing the many considerations such as who is the mediator, who will attend, who will pay, and will opening statements be done, we now will ask: Will the mediation be in-person or via Zoom?

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About The Authors
Multiple Contributors
Haralyn Isaac

Haralyn Isaac, vice president, claims, for the executive liability division of Great American Insurance Company. hisaac@gaig.com

Keith Gutstein

Keith Gutstein, partner at Kaufman Dolowich & Voluck and co-chair of his firm’s labor and employment law group.  kgutstein@kdvlaw.com

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