As a result of the public health crisis created by COVID-19, the legal profession is operating virtually more and practicing in person less. The legal profession will never be the same.
Attorneys will be litigating, arguing, closing transactions, and counseling individuals and corporate clients over virtual platforms, from the most commonplace tasks, such as a virtual notarization or executing a will, to holding virtual hearings before a court or closing on multi-million dollar transactions.
COVID-19 has locked down the world, bringing unthinkable harm – disease, unemployment and disaster for many businesses.
With courts shut down, many litigators were having lot of free time at home, with little else to do. Many of their business clients were facing major losses, with stores closed and a dramaticaly reduced workforce.
It is unclear, how long the pandemic will last. If our economy and infrastructure are to survive, mechanisms for conflict resolution must be available. Companies and individuals must resolve conflicts to protect property as well as individual rights. Conflict resolution will allow people to carry on their work, pay their employees, and run their businesses.
The time has been ripe for mediation. The fundamental question facing mediators when lockdown began was whether it is possible to continue mediation while we are all at a social distance.
Thanks to online platforms and videoconferencing technology, over the last few months there has been a dramatic shift to online mediation.
Preparation for a Virtual Mediation
Like everything else we do in litigation, there is a significant correlation between preparation and success. The more a lawyer prepares her client for the mediation, the greater the likelihood of a positive result for the client.
Procedures Unique to Virtual Mediations
Prior to the mediation, counsel must discuss the specific technology for conducting the mediation with the mediator and with clients. Counsel should ensure that everyone is comfortable with the technology. A dress rehearsal or “mock” mediation might increase confidence in unfamiliar procedures.
The parties must set aside a specific amount of time to devote to the mediation, without interruptions. This can be a more difficult commitment when parties participate from their own offices where phones and computers can easily distract.
Parties should consider sharing documents in advance of the virtual mediation, through email or a portal, such as Dropbox or Google Drive.
Any potential written settlement agreement should be circulated in advance of the mediation. The parties should anticipate that edits will be shared electronically during the mediation.
The Virtual Mediation
After thoughtful preparation, the virtual mediation itself should seem easy and comfortable. Typically, parties prefer separate caucuses. Virtual teleconference technologies like Zoom permit the mediator to create separate “breakout rooms” to house parties and lawyers. In a virtual mediation, it is relatively easy for the mediator to move between separate breakout rooms to hold private conversations with parties and counsel. In the event a joint caucus becomes necessary, the breakout rooms can be closed and everyone can become part of a joint meeting.
If the parties resolve all the material terms in dispute, the best procedure is to complete the written agreement, and have it signed by the parties who are present. This can be accomplished through “DocuSign,” a program that allows parties to e-sign a document through a shared portal. If it is not possible to complete a written settlement agreement, the parties should agree that all material terms are resolved and memorialize that final agreement in a term sheet.
Most mediators would agree that an in-person mediation is the ideal way to proceed with mediation. For the moment, and to allow the important work of conflict resolution to proceed, virtual mediations may offer a reasonable alternative to resolving your client’s disputes.
Importance of Online Mediation:
Online platforms have surfaced to make ease and convenience for people to interact, communicate, and resolve issues and any potential conflicts that may arise between the given parties.
Although textual conversations lack tone and body language that is present in physical interactions, online mediation fully provides freedom of expression.
Intimidation from confrontation
Too often, while resolving a conflict, one of the party turns out to be more dominating through their gestures or because of better communication skills. Due to these reasons, one party may shy away from putting their opinion on the table. This is another benefit of online mediation; no one has to feel intimidated by the other party as all the communication is carried out using non-verbal communication, and no party can over-power the other.
Preservation of Anonymity
Online mediation provides the mediator an opportunity to stay anonymous. If the mediator hasn’t met any of the parties in person, then he can stay anonymous, which helps bias caused by socioeconomic factors like age, race, ethnicity, etc. Online mediation preserves identities and confidentialities and is suitable for a lot of people to avoid any bias and discrimination.
Spike in Demand of Online Mediation due to Corona Virus
While practicing social distancing, it has become difficult for people to arrange mediation. Several issues are taking place on an everyday basis, and due to social distancing, it is getting difficult for people to physically interact with people.
Online mediation provides flexibility and ease in terms of matching schedules as no one has to step out and travel anywhere. Rather all the parties can decide a mutual time to interact online or can contact via emails according to their own ease and convenience.
For people who are living in different states, cities, or countries, it gets difficult to travel and reach people living elsewhere. Online mediation solves these problems of geographically dispersed people or organizations and provides them the ease to stay at home and get their issues resolved.
Petar Petrić, Attorney at Law, Petrić & Kajić Law Firm LLC, Mediator and Mediation Trainer