“The future ain’t what it used to be.”
—Yogi Berra, New York Yankees.
And in truth, the present isn’t exactly what we expected, either. Who would have guessed that the world of mediation would become a mix of online, in-person and hybrid events, with the choice of medium adding to the uniqueness of every case?
Our decisions as to the medium of the mediation will continue to change as technology changes and as we change. In that sense, we are never at a final “there.” We are always evolving. It can help, though, to take stock of where we are, and how we got to the “there” we enjoy today.
First, adoption of new technology is an evolution. Was mediation ever really a 100% in-person experience? No. Consider our easy reliance on the telephone. In so-called “in-person” mediations, we routinely used the phone to prepare, to follow up, and to talk on the mediation day with the “real decision maker,” who could be several time zones away. Over the years, we incorporated email and texting into our work as well.
But in 2020, our adaptation to online mediation was sudden and, for many, a shock. We were disoriented newcomers to the land of Zoom. We had to learn, and we had to learn fast.
Second, we should ask, what, exactly, did we learn? Lots. Online mediation works. When people have a need to settle—be it financial, psychological, emotional, or otherwise—they generally find a way. Still, we sensed that for some people and in some cases, in-person mediation would have worked better.
Third, we should ask where our “there” is today, and how we can plan for where it may be tomorrow.
Today, where people are far-flung, mediation is likely to stay online. When people are on different continents, as in many of the tech and IP cases I do, the benefits of in-person mediation would have to be pretty dramatic to outweigh the costs and delays of international travel.
Where all mediation participants live in the same city, some want to mediate in-person. Some don’t. While I see an uptick with in-person mediations in “local” cases, it’s still a mixed bag.
In insurance cases, it’s rare to see claims professionals attend in-person, absent special circumstances. They’re online, and that’s ok. Previously, the burdens of travel kept many supervisors, the “real decision makers,” away from in-person mediations, and policyholders were often frustrated when lower-level carrier reps attended in their stead. Now, I see more senior executives attending online, participating intermittently throughout the day.
When insurance cases play out this way, it’s far superior to the not-so-good old days. Previously, the carrier rep in attendance would call a supervisor at mediation’s end stage to seek a little more money and be asked, after eight or 10 or 12 hours of hard work, “What did I miss?” Oi Vey. Now, the supervisor is more commonly up to speed at day’s end, and better equipped to say aye or nay.
In 2020, some mediators were reluctant to migrate their practices online. Today, some are reluctant to mediate in person or hybrid. My sense is that mediators need to be versatile. Mediators willing to deploy their skills in a variety of settings will be more available, and hence more valuable, than those limited to one medium.
All of which underscores the original theme of this blog post. We are never finally “there,” either in mediation or in larger society. Technology and other circumstances will continue to evolve, and for all of us, adaptability is key to success.
It took a pandemic. In my prior work, I advocated for and heavily used desktop video conferencing so when I became a mediator in 2014, it seemed natural to me that we would use video conferencing in mediation, but it took a pandemic to convince people.
Before the pandemic hit in 2020 in typical insurance-involved mediations we were using “online” modes of communication in mediation such as phone, text, and e-mail. Sporadically used were video conferences and usually only to accommodate geographical impediments to in person and those sessions were mostly hybrid—some participants in person and some on video. When I would suggest a pre-mediation meeting by video people would say, “How would we do that? I’ve never used Skype.”
On March 16, 2020, I conducted my first pandemic-induced all-by-video mediation session using the Zoom platform and people were amazed at how well it worked. Over the next 90 days people either embraced what would become the “new normal” or mightily resisted it by rescheduling sessions several times. By July 2020, even the most reluctant participants had to give in to the notion that if their matters were going to mediate it was going to be online, but they were yearning to return to what they knew.
Now, three years later, people’s comfort with online mediation is such that counsel and parties are deliberately considering whether everyone or just some or none of the mediation participants should be in person. People are recognizing that if they want to have the “right” people (something else about which we have written in “Mediators Speak”) meaningfully participate in the mediation it might be best to be by video. People are also considering parity among participants in the hybrid context. Fewer people are saying, “I want to be in person because I just prefer it,” possibly fearing being viewed as a dinosaur. More people are attesting to unique experiences that could only have occurred in video mediation.
Now we have the flexibility to decide what is best for the particular dispute, the identity of who would best participate, time and space differences, travel needs, physical challenges—and sometimes health issues—do you really want someone who is unwell to have to drive two hours each way to sit in an uncomfortable conference room with uncertain food options or would you rather they be close to home and their care givers?
Recently, a mediation session that was supposed to be everyone-in-person had to pivot to hybrid, a party was debilitated by the overwhelming emotions brought on in anticipating mediation. Everyone was in person except that party and the work done by video with the overwhelmed party moved the negotiations forward.
If the pandemic had ended after just six months we wouldn’t be where we are now, having online mediation available to us as we flexibly consider how best to structure our mediation processes.
