Panel Discussion: Mediation in the Age of Covid and Beyond

• Publication year: 2022

54 Creighton L. Rev. 519. PANEL DISCUSSION: MEDIATION IN THE AGE OF COVID AND BEYOND

PANEL DISCUSSION: MEDIATION IN THE AGE OF COVID AND BEYOND

PANELISTS: STEPHEN GEALY, ^[D1]
JEAN STERNLIGHT, ^[D2]
& AMY VAN HORNE ^[D3]

MODERATORS: RACHEL GOEDKEN ^[*] & DON HARSH ^[**]

ABSTRACT

The following is a lightly edited transcript of a panel discussion from the 2021 Creighton Law Review Symposium: Alternative Dispute Resolution in the Business Setting, on February 26, 2021. This Symposium combined the latest academic research, practitioner expertise, and legal updates on the use of negotiation, mediation, and arbitration in business and the workplace. In addition, the program celebrated the Werner Institute's 15th Anniversary at Creighton University.

This panel discussion was during session 2: "Mediation in the Age of COVID and Beyond." Panelists Stephen Gealy, Jean Sternlight, and Amy Van Horne discussed the recent move to online mediation and the psychological impacts of online lawyering, commenting on which approaches enhance effective advocacy and how technology might influence psychological factors such as fatigue, empathy, perception, and credibility. This panel was moderated by Professor Rachel Goedken and Creighton Law Review Associate Staff Member Don Harsh.

I. THE TRANSITION TO ONLINE MEDIATION . . . . . . 520

II. TECHNOLOGY, PSYCHOLOGY, AND LAWYERING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 522

III. MEDIATION IN THE CONTEXT OF ZOOM. . . . . . . . 525

A. ASSESSING CREDIBILITY: MORE LIKELY TO LIE ON ZOOM? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

B. ZOOM'S EFFECT ON EMOTIONS. . . . . . . . . . . . . . . . . . . . 527

1. Do People Manage Their Emotions and Behavior More Effectively?. . . . . . . . . . . . . . . . . . . 527

2. Can Zoom Reduce "Mediation Resentment"? . .529

3. Procedural Justice and Zoom. . . . . . . . . . . . . . . . 530

4. Interpreting and Preparing for Emotions on Zoom. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531

5. The Importance of Increasing Comfort with the Technology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 531

C. PRACTICAL CONSIDERATIONS. . . . . . . . . . . . . . . . . . . . . . 532

1. Verifying Parties' Identities. . . . . . . . . . . . . . . . . . 532

2. Using Zoom Breakout Rooms. . . . . . . . . . . . . . . . . 533

3. Fatigue and Virtual Mediation. . . . . . . . . . . . . . . 534

I. THE TRANSITION TO ONLINE MEDIATION

Rachel Goedken: Let's talk first about the transition to online mediation last March. The [COVID-19] pandemic hit. We didn't necessarily even know what that had in store for us at the time and it wasn't even a thoughtful and intentional move to online mediation so much as it was a creature of requirement. So, tell us a little bit about what cases moved online and which cases stayed in person.

Amy Van Horne: Intentional-I wish. At Kutak Rock, our Omaha office closed on March 20th at the end of the day, although we had been gradually migrating home before that. Basically overnight, we went from an in-person mediation world to an online mediation world. I have mediated in-person a few times with everyone observing proper CDC guidelines, masks, and social distancing. Everything else has been online. My partner, Mike Mullin, is also a mediator. He has gone 100% online. But again, it wasn't a thought-out process; it was a reaction to the world that we were all of a sudden living in.

In terms of what cases moved, I would say for my practice, and I'll ask Steve to fill in on his experience because I think it was slightly different than mine, we had about two weeks of panic: we're under a court deadline and we have to get this mediated, or the judge is going to be mad at us. After about two weeks, everybody realized this wasn't going to go away overnight and they needed to do something about their mediation. For the most part, with a couple of exceptions with attorneys that held out for quite a while, I have gotten back pretty much everybody, and the people that postponed at the beginning of the pandemic have now either mediated with me or are back on my calendar once again. Steve, what was your experience?

Stephen Gealy: My experience was very similar, Amy. Our office closed at almost the same time that Kutak Rock closed. Baylor Evnen maintains kind of a "skeleton crew." We have document handling personnel there and we have someone there to handle the telephone, and the managing partners are in the office most days. Aside from that, almost everyone has worked virtually exclusively online. I will tell you that at one point in time, I had a list of probably fifteen mediations that were indefinitely postponed because people didn't want to give up the chance that perhaps they could do those in-person. I think, with an exception or two, all of those have now been completed on Zoom.

As a person who's been in practice for nearly 40 years, I had some significant trepidation about the prospect of moving online and my ability to deal with the technology, but I have been pleasantly surprised at how well Zoom works for mediations in a lot of respects. I honestly believe that Zoom may be more effective than in-person mediations because of the isolation that can be created. Now, I don't know that I can say that I've had any specific sort of case remain inperson. I have done a couple of will contest cases and the parties who all hated each other insisted those be in-person, but the vast majority of my practice is mediation of personal injury cases-a lot of truck accident cases. Those have almost all been accomplished online, and the success rate is at least as high, and perhaps higher, than it was in in-person mediations.

Amy Van Horne: My favorite transition story: I had five or six cases where I offered to meet in-person, as long as everyone was socially distanced and masked up, but I said: "You know I can't do it here. We cannot have anybody from outside of the building, so if you're willing to host, let's pick a day." The comment invariably was our office is closed and I can't have anyone in. Well, let's go to Zoom then.

So, as we were working through this and looking ahead to probably mid-2020, one of the things that we've been talking about internally is whether or not we should continue mediating online or return to in-person or do some kind of hybrid. Jean, can you talk to us a little bit about how technology is going to impact the lawyering?

II. TECHNOLOGY, PSYCHOLOGY, AND LAWYERING

Jean Sternlight: Yes, what I'd like to do is just give you a little bit of a taste of this project that I'm working on. I have a co-author, Jennifer Robbennolt, and she and I have written a book on psychology and lawyering. ^[1] We decided there's an awful lot of psychology that goes into the question of which technology you want to use for dispute resolution in looking ahead to the post-COVID era. One day we won't have to be on Zoom if we don't want to. On the other hand, I totally agree with Stephen and Amy that we've learned that Zoom is a lot better than we thought. So, Jennifer and I are hoping to help lawyers and others think about, once we get a choice: Which technology do we want to use? When do we want to be in-person? When do we want to be on Zoom? When do we want to be on the phone? When do we want to use just text boxes?

What we've done in this article, that is still yet a work in progress, is two things: [1] we've looked at a whole lot of psychology that relates to a whole lot of aspects of those kinds of choices-because as you'll see in a few minutes there's an awful lot to it-and [2] the other thing that we've done is offer a framework for how to even think about the problem, because frankly when Jennifer and I started to think about it, we were awed by the fact there's so many complexities to the issue. ^[2] The framework we think makes sense is to consider the particular features of the alternative types of communication.

For today, we're really just talking about Zoom versus in-person mediation. First, I'm going to talk to you about what are the distinguishing features of in-person versus the distinguishing features of Zoom. The second part of our analysis says: "Okay, well, we know what those features are. How do those relate to things we care about in dispute resolution? What are the impacts on important aspects of dispute resolution?" Then, the third piece of the analysis brings in a lot of contextual considerations. Stephen, for example, mentioned having disputants who already hated each other. Sometimes you do have that in a mediation-folks who already hate each other. On the other hand, sometimes you have folks who actually like each other. Things like that are going to make a difference.

So, not to be mysterious, what I'm talking about with respect to the alternative features of various kinds of technology are these four aspects: [1] richness/leanness, [2] formality/comfort, [3] synchronicity/ speed, and [4] transparency/privacy.

First, technologies differ from one another in terms of what researchers have called the richness or the leanness of the channels of communication. That's a big mouthful, but it's completely common sense. What we're talking about is when you're in-person, there are lots of ways that you can communicate with another person. You can use your words, of course, and you...