I Witness. Practical Advice for Virtual Mediation

• Author: Joseph P. Esposito
• Pages: 12-14

iWitness

Published in Litigation, Volume 48, Number 1, Fall 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 12

JOSEPH P. ESPOSITO

The author is with Esposito Mediation LLC, Bethesda, Maryland. He thanks Jennifer Gartlan, mediation

program coordinator for the District of Columbia Court of Appeals, for her invaluable insights and thoughts

on remote mediations.

Given the cost and time savings, we can

expect remote mediation to persist long

after the COVID-19 pandemic is behind us.

Indeed, some observers expect that at least

half of all mediations will continue online

to reduce expense, increase convenience,

and facilitate scheduling. Court dockets,

clogged before the pandemic, suffer ever-

increasing backlogs. Technology makes re-

mote mediation quite feasible and acces-

sible. Thus, virtual mediation may be the

best available option for resolving pending

cases and pre-litigation disputes.

Many essential aspects of mediation

are the same, whether they are in person

or virtual: determining when the media-

tion should occur to best balance the par-

ties’ need to possess sufficient knowledge

to reach a resolution, while minimizing

the legal fees they have to incur; sele ct-

ing the right mediator for the case; pre-

paring effective written mediation state-

ments that provide the mediator with the

necessary information to understand the

issues and help the parties to resolve the

dispute. But there are significant differ-

ences between virtual and in-person me-

diations—some positive, some negative—

and it is critical for both counsel and the

mediator to have strategies that account

for those differences.

Rather than being in physical rooms,

participants in remote mediation occupy

virtual rooms. Depending on the media-

tor’s approach, the parties may remain

together in the same room for negotia-

tion or, more typically, are moved to sep-

arate virtual breakout or caucus rooms.

As in in-person mediations, the mediator

moves among the breakout rooms, but

without adding a single step to his or

her pedometer. Someone at all locations

where participants will be needs to have

a basic familiarity with the technology

platform, and the location needs to have

sufficiently strong internet connectivity,

with good-quality audio and video, to fa-

cilitate uninterrupted sessions.

Virtual mediation can help to reduce

the negative emotions in particularly ac-

rimonious cases, at least in the sense that

the parties are not in the same physical

room or even in the same location. Often

the parties at in-person mediations have

made it clear that they did not wish to be

in the same physical space as their adver-

saries, even briefly, and occasionally did

not even want to run the risk of seeing

them. Virtual mediation can be a positive

in this respect.

The parties can be more physically

comfortable sitting in their own homes

(often with their pets appearing on screen)

or offices for a virtual mediation. I have

long thought that it might be more condu-

cive to settlement to do mediations in the

comfort of a home, with easy chairs, pleas-

ant surroundings, and snacks, as opposed

to a sterile office space. The session can

usually go longer when mediating virtu-

ally. There is no need to rush out to catch

flights home, or even to move cars out of

a parking garage before closing time, and

there is much less looking at watches as

the day goes on. These are some of the

favorable attributes of virtual mediations.

There are negative attributes as well.

In virtual mediation joint sessions, it is

more difficult, indeed probably impossible,

for counsel and parties and the mediator

to observe fully the body language of the

other parties. They can still see the face

and shoulders, but such a narrow view

probably diminishes the ability to assess

the reactions of adversaries to statements

or proposals made. A virtual format defi-

nitely eliminates picking up on glances

between counsel and clients, which can

be very telling signs. Given that most me-

diations are in joint session for a relatively

small fraction of the total mediation time,

this is likely not a significant detractor for

counsel and the parties. Good mediators

in private virtual caucuses will compensate

by focusing more on facial expressions and

vocal inflections, as well as by endeavoring

to elicit more verbal signals to get to what

may be needed to reach a deal.

PRACTICAL ADVICE FOR

VIRTUAL MEDI ATION