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The Altered Landscape of Mediation

COVID-19 is driving change. Why some of it may be here to stay

January 19, 2021 Photo

As claims professionals, we start the dispute-resolution process by adjusting losses. We consider the insurance policy contract as well as state and federal laws when making decisions on what is owed and all factors that influence settlement. The claims process can end by settlement in negotiations, ADR, or trial.

With COVID-19 persisting, all processes are under examination and reconsideration for how resolution may be achieved. Assessing the possibilities under new constraints is an evolving task. The “how” of protecting the sanctity of the confidential mediation process has been under scrutiny since it became apparent that virtual mediations, in some form, are here to stay. And while concerns still seem to outweigh the benefits, the results are almost identical to in-person hearings. There are some considerations that I can share from the perspectives of a former commercial adjuster and a mediator.

With regards to observation, the ability to see and monitor behaviors is not the same virtually. As a matter of fact, it is virtually (pun intended) impossible to adequately proctor the mediation environment as the adjuster and as the mediator. In-person mediation hearings allow for a “read” of the room on the part of the adjuster, a valuable advantage when assessing the case up close, especially if trial is imminent. If the plaintiff has claimed certain disabilities and inabilities, a good look at her at the mediation table may shed some light on if truth or fiction is being peddled. The parties get their stories told “in color” versus black and white. An adjuster has the opportunity to consider any previous unknowns that may change her evaluation, up or down.

Additionally, plaintiffs want their “moment in the sun.” In some cases, it is the story-time sharing in the joint session opening statements. The plaintiff may feel that moment is diminished a little by an abbreviated online mediation process, especially if the case does not settle. Also, the apology that often starts the healing process is more heartfelt in person. Although an online apology is still an apology, there is something about being there to look eye to eye when those important words are said.

From my viewpoint, the biggest benefit of in-person mediations is the human touch—the ability and skill in discerning the human condition distinguishes a talented dispute resolution professional from the common-variety colleague. I have been able to influence communications and concessions by just bringing my humanness into the room. The power of authentic interpersonal connection is difficult to replicate virtually. The tenet of trust for a mediator is a make-or-break skill.

Of course, COVID-19 has caused us to reimagine mediation in the interest of public safety. The process requires more work, but it has its benefits. Mediation is a great option given the indefinitely delayed trial calendars and backlogged caseloads. It is also a golden opportunity for parties to take matters into their own hands and not leave the fate of their cases in the hands of six or 12 strangers. Mediation participants can attend from virtually anywhere, and parties who suffer from disabilities can participate from the comfort of their own homes without having to deal with travel or traffic. This arguably puts them in a better state of mind for the mediation process.

Overcoming Challenges

Pre-hearing agreements need to stipulate that recording the hearing is prohibited. It has been suggested that the parties be asked to verbally confirm they are in a private, secure location on the day of virtual mediation and notify the mediator of any changes. The truth is, in person you could not guarantee that participants were in compliance with the no-recording policy. No one was checking under the table for cellphone recording noncompliance.

Managing the virtual platforms can be challenging from a tech perspective and from the host’s perspective. For example, it’s important to let everyone in from the waiting room simultaneously so that no one party feels slighted. This and other issues are being examined to determine how to efficiently run mediation hearings without breaching confidentiality. Zoom worked out the “bombing” issues that were taking place in early 2020, and it’s now best practice to “lock” the meeting. Be aware that using a third party to manage technology is a confidentiality breach that could cause evidentiary exclusion issues regarding ADR communications and potentially jeopardize subsequent hearing exemptions that a mediator usually enjoys.

There are various scenarios for attendance at online mediations. Clients may attend the hearing in person, in their lawyer’s office, in the same building but a different room, or from a different laptop. We have had to get creative with the sharing and signing of documents (thank goodness for Dropbox and DocuSign).

Not every case is appropriate for a virtual environment, so hybrid hearings are under consideration. It is interesting that, while the bedrock of mediation is compromise, when the process itself requires recalibration and reconsideration, it can be difficult for everyone to make concessions. The reality of not knowing what the new normal will look like raises the question: How will the future of ADR look when the vaccine settles? One thing is for sure, the future of mediation is compromised. 

About The Authors
Rebekah Ratliff

Rebekah Ratliff is a mediator and arbitrator with JAMS.  rratliff@jamsadr.com

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