IndyBar: The Impact of COVID-19 on the Future of Mediation

By Matthew T. Kavanagh, Schiller Law Offices

As the recent coronavirus pandemic has swept through the nation and has changed many aspects of our lives, so too has the landscape of the legal field. One of the most significant changes to have taken place over the last month is the way parties are conducting mediations. Although the Indiana Alternative Dispute Resolution Rules require all parties to be present at a mediation, the travel ban limiting all non-essential travel, which mediations fall under, has made it impractical for parties and their counsel to attend in-person mediations and forced attendance via video or telephone. Although I am relatively new to the practice of law, in speaking, and recently mediating, with seasoned mediators, including Mark Metzger of Metzger Rosta LLP and Derek Mandel of Mandel Horn & Rauch P.C., this is something that has generally not happened before except in limited circumstances. However, over the last several weeks, I have personally attended three mediations without leaving my office and have a handful of virtual mediations scheduled over the next month. This all leads to the big question: are virtual mediations the future? In examining this question, I have observed the following pros and cons.

Pros

One of the most notable benefits of conducting virtual mediations is the efficiency it produces. This is true for plaintiff attorneys as well as defense attorneys and insurance companies. The most evident efficient aspect is not having to travel to the mediation, which saves about a half-hour of preparation time to leave the office and then the actual time of travel to the mediator’s office. An aspect that benefits an insurance company is not having to pay an attorney to travel to the mediation. This can be a significant cost-saving measure for an insurance company if the mediation is several hours away from the attorney’s office. For a plaintiff attorney, not having to spend several hours away from the office will allow additional time throughout the day to check emails, meet with clients, review discovery and prepare motions.

Another benefit to virtual mediations, and ultimately another cost-saving measure, is the actual length of mediations. Of the three virtual mediations I have attended, two have been telephonic and one has been through Zoom. A quick side note on Zoom — Zoom has a great feature that allows the mediator to send the parties into a breakout room, which allows the parties to be in their own “room,” similar to if they were separated into different rooms at a mediator’s office. This function even works when an attorney and their client enter a Zoom meeting from separate computers in different locations. This allows clients to be in the same breakout room as their attorney while they are in the comfort of their home or office. The mediator can also, if needed, separate an attorney and client so she can talk directly with the attorney, which is sometimes challenging during in-person mediation.

While there are several benefits to the parties, a convenient aspect for the mediator is she is able to conduct the mediation from her desk. This allows her to quickly change from breakout room to breakout room with just a few clicks of her mouse. Mark Metzger, who has already conducted numerous mediations via Zoom since this pandemic started, reports that using Zoom has cut the time of mediation in half. My experience using Zoom during mediation, and even the telephonic mediations, have been similar. This time-saving measure through virtual mediations will put and keep more money in our clients’ pocket.

Cons

One of the potential negative aspects of virtual mediations is also one of its biggest benefits: convenience. Many times, parties want to apply pressure at mediation and wear out the opposing side. This is harder to accomplish when parties have not had to dress up, travel and sit in an office for several hours. Additionally, a mediator may be able to assert additional pressure on a party when they are sitting in front of them as opposed to talking to them over the phone or a computer screen where a party can instantly end the mediation with the click of a button.

Another drawback with virtual mediations, specifically with Zoom, that I have noticed already, is that my clients, particularly those who are not technologically inclined, have trouble accessing Zoom and are not comfortable using the online platform. Although with the social distancing that is currently in place more people than ever before are learning how to communicate through video, their preference may be to meet in person when that opportunity eventually returns.

Are Virtual Mediations Successful?

The deciding factor in whether virtual mediations become the norm after the coronavirus pandemic passes will be their success. So far, two of my three virtual mediations have settled. Although this is a small sample size, I found all three of my virtual mediations to be just as effective as if we were in person. With no clear indication of when we will return to business as usual, virtual mediations are here to stay for the time being. During this time, we will certainly become more accustomed and comfortable with them.•

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