In Defense Of Virtual Mediation

By Michael Willemin
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Law360 (April 13, 2020, 2:03 PM EDT) --
Michael Willemin
Michael Willemin
On April 6, Law360 published a guest article titled "The Era of Video Mediation Is Here — Or Is It?" The article reported the results of the author's informal survey of over 200 first-chair business trial lawyers and senior claims executives from around the country. Approximately 100 individuals responded to the informal survey — "very few" of whom had experienced a video mediation. An overarching theme of the responses was a reluctance to try or embrace video mediation. 

I write in response to the concerns raised in the April 6 article. The five partners at my firm have all participated in one or more video mediations in the past two weeks. In total, we have completed five video mediations, and every case was successfully resolved. Moreover, collectively, we have observed many benefits to video mediation and certain advantages over traditional mediation. 

The upshot is this: People are often reluctant to stray from a familiar process. The unknown causes uncertainty, which people — and lawyers in particular — are psychologically hardwired to avoid. For these reasons, among others, new ideas, new concepts and new technology often face an uphill battle to gain popular acceptance. To that end, when truly assessing the legal community's reluctance to embrace video mediation, it quickly becomes clear that this disinclination is not rooted in any firm rationale.

It starts with basic courtesy. We have found that counsel for all parties are more likely to be courteous in a video mediation than in person. This may be the result of the fact that in a video mediation, unlike in a face-to-face mediation, you can actually see yourself and what you look like when you are communicating. This forces counsel to be even more circumspect with regard to their conduct, and seems to lead to a more civil discourse with less counterproductive posturing. 

As a result, the communication tends to be more direct, which is generally conducive to achieving settlement. Moreover, the sort of conduct that can send a mediation sideways (accusations, angry outbursts, etc.) is less likely to occur via video. 

Many of the survey respondents reported a concern that mediation over video would make it more difficult for them to use body language to glean information about the other side's position. One attorney declared that he "hate[s] video mediations" because "[f]or a litigator, there's something about eyeballing your opponent and their client in order to read body language, gauge perspiration level, observe twitching, and being able to smell their fear." 

Another respondent opined that "[t]he conversations can be more stilted, there is more reluctance to speak when you cannot clearly see the listeners' reactions, and you lose the ability to read body language and the details of facial expressions. The result is impacted communication."

Respectfully, I disagree with these takes.

First, when communicating over videoconference, you can still observe quite a bit of body language. You are still able to see the faces of the persons participating, which is where most of the relevant body language is likely to be observed. While you cannot "smell fear" through a videoconference, you frankly cannot "smell fear" in person either. 

More to the overarching point, in our experience we have found that video mediation tends to promote conversation that is actually less stilted and more productive. Counsel are more likely to have their guard up during a face-to-face meeting than during a videoconference.

Video mediation naturally disarms people because everyone on the call is already revealing more about themselves than they would in a face-to-face mediation (for example, their physical location and background, which can speak volumes). Those who are paying attention (and who resist the urge of being overly casual) can gain an advantage because there is potentially more information revealed during a video mediation than one that takes place in-person.

Video mediation is also far more efficient in terms of time and aggravation.

Counsel seem less inclined to do opening statements, which can save time and reduce tension (although there are, of course, instances where opening statements are helpful). A mediator can jump from room to room in a matter of seconds, and if one needs the mediator he or she can simply call and the mediator will appear. Breakout rooms can be created for any combination of participants, and participants can jump from room to room instantly and seamlessly. 

Perhaps most impactfully, counsel seem far less likely to try to "ice" the other side with a long wait when they know that the other side is at home and comfortable. While some survey respondents correctly pointed out that discomfort and long hours locked away at a neutral site can facilitate resolution, we believe that the reduced aggravation and frayed nerves that come with video mediation is also helpful in achieving resolution. 

It is particularly helpful where clients are less stressed, which reduces the urge to engage in conversation that can be circular and unproductive. Moreover, if the process is more comfortable and less time-consuming, all parties will feel better at the end regardless of the result.

The technological aspects of video mediation also are useful tools. For instance, when using Zoom, one can share his or her documents or computer screen with the other participants. This allows individuals to display and walk through documents together more efficiently than in a face-to-face setting. This is particularly helpful when it comes to drafting settlement agreements, which can often take hours at the end of an already long day of mediation. 

With all counsel working together on the same document and screen, significant time can be saved. Of course, once agreements or term sheets are completed, they can be signed using electronic signature programs such as DocuSign.

Another positive — and one that was addressed in the April 6 article — is that the "real" decision-maker is far more likely to participate in a video mediation than in a face-to-face mediation. For one, work and travel obligations often prevent the appearance of someone at an in-person mediation, whereas the same person may be able to carve out time to meaningfully participate in a video mediation.

Moreover, even where the real decision-maker participates in an in-person mediation, it is often only by telephone. Having the same individual participate over video is a step-up in the sense that the mediator is more likely to be able to read body language and facial expressions.

For all of these reasons, and others, video mediation is probably the most efficient way to quickly resolve cases that would otherwise be destined for litigation (or additional litigation). This is particularly true given how easy it is to schedule a video mediation — it is far easier to secure the participation of all the relevant parties by video than it is to secure a date upon which those same individuals can travel to an in-person mediation. 

So, why the apparent aversion to video mediation among the survey respondents? Could it be that the absence of mediation actually benefits lawyers who bill by the hour? It could be part of it. Could it be that defendants and prospective defendants are looking for any possible excuse to delay? This also could be part of it. Most tellingly, however, is the following passage from the April 6 article:

As [one attorney] phrased it, "If Zoom was such a good way to do a mediation, we would have been using it long ago." More colloquially, we all know that if you build a better mousetrap, the world will beat a path to your door. But no mediator, or litigator, was beating a path to Zoom's door for mediation until last month, despite Zoom's ubiquity. Ergo, it must not be that better mousetrap.

Again, I respectfully disagree. The world has not always embraced the best mousetrap, nor has the legal profession. In fact, the opposite is often true, as inefficient and inferior traditions often persist despite the advent of better ways to do things. Is video mediation a better way to do things? Only time will tell — but don't write it off just yet.

Michael J. Willemin is a partner at Wigdor LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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