Virtual ADR in a COVID-19 world

As a result of COVID-19, we all have experienced a state of seemingly unrelenting fear and panic, with family and health concerns taking precedence over our more mundane concerns. In addition, we have suffered major educational and economic blows. The impact on our lives has been unimaginable.

Before March 2020, if you would have asked a legal professional whether a wrongful death, wage and hour class action, or a multi-party complex business dispute can be resolved in a mediation or a five-day arbitration with all parties appearing virtually, you would have heard 'doubt it!'

Since that time, with no foreseeable meaningful access to the courts and the persistent need to conduct business, law firms, corporate legal departments, insurance carriers, and ADR companies pivoted to virtual platforms promptly. Initially, there was resistance taking depositions virtually, specifically as it related to a concern about limited ability to obtain and use reports and documents. Most importantly, advocates were hesitant to go virtual because they believed their cross-examinations would have limited efficacy. The requirement that everyone who can work from home should work from home shifted our business priorities and made us look within ourselves for a new way to move forward. Going virtual was not simply an option, it was an absolute imperative.

The Pros of Virtual ADR

There are several pros says, Linda Claxton, Esq., partner with Ogletree Deakins. "Many of my corporate clients are loving Zoom, especially the companies back East. It has been efficient and cost effective. They're engaged and less distracted. That said, I spend quality time with them before the mediation to discuss the technology pitfalls and how we can accomplish our goals virtually."

Many concur. Adam Shea, Esq. partner at Panish, Shea and Boyle, says, "Our clients feel thankful that their issues can be heard now as opposed to waiting months and months. The mediators have adapted well, and use break out rooms efficiently. If we were in an all-day mediation in person, my client would be sitting in a room with a lot of downtime. Now they can log off and be productive and log on when the Mediator is ready to talk to us."

Mediation is a "feel" process. There is an intangible component to successful resolution; looking into the eyes of clients, observing body language, walking down the hall together while getting water and a snack allows for rapport and trust building. As a result, mediators have evolved and are utilizing new tools to achieve resolution.

Todd Smith, Esq., an experienced employment mediator in Southern California, said, "I find that although virtual platforms do not take the place of in-person interaction, more people can participate virtually, especially those with a higher authority who we didn't always have access to previously. I can share information directly with them and work to develop a good rapport, for example, by observing and commenting on their environment, whether it's their kids or pets, to help resolve the matter."

In a multi-party business case with a dozen attorneys at more than five firms in different time zones, Justin Nahama, Esq., partner with FisherBroyles said, "when the complexion of the exceptionally contentious mediation changed due to COVID closures, the technology was critical. The mediation flowed incredibly well through the time zones, and the technology was seamless. Our three Judicate West co-mediators worked day and night to collaborate and keep the parties on track by thoughtfully leveraging their respective areas of expertise. I never thought a case of this nature would resolve remotely."

The Cons of Virtual ADR

In arbitration, retired Judge Judith Chirlin, ret., arbitrator at Judicate West, says, "using technology in cases involving mostly legal issues such as interpretation of a contract, an employee manual, other documents or damages seem to work well. However, in cases where the outcome of the case is based primarily on the credibility of the witnesses, it can present a challenge. It is harder to see the witness'' body language, and parties' reactions to each other and the testimony given."

You may not know if any other individuals are in the room with a witness who testifies remotely. As a result, it is not uncommon that arbitrators have incorporated new and added confidentiality language into their oaths as assurance.

In mediation, Ricardo Echeverria, Esq., partner at Shernoff, Bidart & Echeverria, says, "Before, when a senior claims professional would fly or drive long distance to the mediation, it created a vested interested and focus on the case. If they are attending virtually post-pandemic, it may present some challenges that make it harder to settle."

Helpful Tips

• If it is the first time you're working with the mediator, suggest a virtual pre-mediation call to establish rapport prior to the hearing.

• Make sure you and your client's technology and wifi are working efficiently. Conduct "dry runs" to ensure your client and associated lawyers are ready to perform at their best in the virtual forum.

• Advise the mediator and work out a plan if a key person to resolution is not able to attend. It is an unwelcome surprise if a person who is important to the process does not participate, and the rest of the parties learn about it too late.

• Disclosure, confidentiality, and ethical behavior are extremely important, as you can't see others who may be in each room with the parties and lawyers. These are critical components to building "virtual trust."

Is There Neutral Ground Post-Pandemic?

There is no denying the many advantages of not having to travel to an ADR session. The cost savings, time efficiency, and reduced wear and tear on staff have been major, unexpected benefits that, combined with safety concerns, have motivated some companies and firms to consider implementing a no travel policy.

The consensus is that, when it is safe, some cases need to be mediated and arbitrated in person. Even in a post-vaccine world, our individual interpretations of what is safe will vary. Is there a neutral ground that fits all cases in all types of ADR? Yes, there will be, using hybrid resolution models. Some participants will want to be live, while others will still be more comfortable by video conference. We must continue to evolve with the changing needs and court dynamics for years to come.

Hon. Andrew Guilford, U.S. District Court Judge, ret. with Judicate West, sums it up: "I feel a loss not being with my colleagues in the office that creates a community of successful mediators. Also, not being in our great offices for everyone to enjoy the amenities and a caring environment that's conducive to what we do has taken a key element away from the ADR process."

We concur, hope you all stay healthy and safe, and can't wait to see you in person soon.