The experience gained from a crisis often can prove meaningful – and even transformative – as adaptive changes, which otherwise may have evolved at a slower pace, are accelerated.
In response to the coronavirus, there has, literally, been a massive movement seemingly overnight by parties to utilize virtual ADR techniques to resolve disputes. Those who make this leap to new means and methods of dispute resolution are unlikely to retreat – even after the current crisis subsides.
This Mediator received his initial training in virtual ADR a number of years ago and has seen its acceptance grow, albeit slowly, since that time. Initially, there was an overall hesitation about the use of virtual ADR. Surely, there is a part in all of us that resists change and abides by the old adage, “If it ain’t broke, don’t fix it.”
Setting aside the vagaries of human nature, there were also specific questions and concerns about the adequacy of the technology. “Is the process secure?” “Won’t there be glitches leading to delays and frustration?” “How will the confidentiality of the Mediation be maintained?” “How can the technology mimic the feel and experience of an in-person session?”
From this Mediator’s perspective, the virtues of the virtual ADR process are even more evident given the challenges of doing business while the coronavirus is upon us. To begin, the parties are all able to see each other and interact in real time over a secure, high-speed network. To participate, they need only to log in. The session then proceeds no differently than if each of the participants was seated around the conference room table. It is remarkable how quickly one forgets the parties are not physically present as the focus immediately turns to the matter at hand. As the caucuses begin, the Mediator has the ability to send an individual party or group of parties into separate, secure “conference rooms” and meet with them privately – no differently than if he or she had walked them across the hall and assigned them to a “brick and mortar" conference room.
The technology also allows parties to deliver PowerPoint presentations and provide the other participants with on-screen views of documents or photographs – just as if they were being passed across the table for consideration.
While this leap to virtual ADR may be a child of necessity, the impact will be far reaching. The savings in travel time and expense for out-of-town participants will be considerable. Presently, out-of-town counsel and/or their clients and/or their insurers may have to dedicate the better part of the day before, and the day after, a Mediation session for travel. That will be eliminated. Virtual ADR will also allow additional team members to attend Mediations from which they might have otherwise been precluded due to time or cost constraints. Logistical issues such as flight schedules, delays and weather will no longer be of concern. Even those nearby will be more productive if they are able to remain in their office to prepare, or attend to other matters, until it is time to log in and begin the session.
This will make it easier to schedule Mediation sessions. The parties only have to agree on the date and time, as they can attend from anywhere. This flexibility will also prove to be particularly important when a matter needs to be scheduled and addressed in a time-sensitive fashion.
The leap to virtual ADR has been greatly accelerated, but the bottom line is that its strengths are known, tested and available. For those who remain hesitant (and, candidly, this Mediator was once in that camp), there is absolutely no downside to trying the process and experiencing its virtues.
Published May 11, 2020.