The court must go on: Lessons learned on conducting virtual mediations

Amid the pandemic that has disrupted so many aspects of our lives, our nation’s courts have risen to the occasion, embracing virtual hearings of all kinds — mediations, depositions, and trials — and there is growing consensus that digital court proceedings will be here after the pandemic in some modality.

At the recent annual Association of Corporate Counsel (ACC) conference, held virtually, one panel discussed courts’ initial resistance to virtual proceedings, how the pandemic has changed things for both in-house counsel and law firms, and how these changes will continue into the future, giving litigants greater access to justice.

Virtual courts: The pre-pandemic view

Prior to the COVID-19 pandemic, many lawyers were skeptical of virtual court proceedings, and panelist Arjun Thomas, Managing Attorney at FedEX Ground, explained some reasons why litigators were reticent to online hearings, including:

• • • there’s no substitute for in-person communication;
    • the technology won’t work;
    • the players — the meditator, arbiter, lawyer, expert, or witness — won’t be as effective in this environment; and
    • lawyers like to travel. (Thomas admitted he does).

But despite these hesitations, attorneys have had the ability to conduct virtual hearings before the pandemic struck, according to American Bar Association (ABA) rules, they just weren’t motivated to do so, Thomas added. Then the pandemic broke, and lawyers were forced to act nimbly in order to continue serving their clients. This ultimately meant embracing technology — a scary proposition for practitioners of a profession often resistant to change.

Expedient & efficient: Mediations gone virtual

For counsel that have conducted in-person mediations, they know those proceedings can often drag out over several months or more due to logistics and travel schedules, especially one involving 11 participants to a case. That was the situation described by Thomas in a recent case involving FedEx and the government.

Surprisingly, the mediation was forced to go virtual and the parties were able to resolve the case in a little over a month, scheduling three successive virtual mediation sessions in a six-week period, often an unheard of feat for in-person hearings with numerous schedules involved. The ability to conduct the hearing over Zoom was the game-changer, Thomas explained.

Panelist Rebecca Weinstein Bacon, a Partner at Bartlit Beck, said that in addition to expediency, there are some practical tips about mediation that she has learned since the pandemic began. While it is always important to choose the right mediator, for example, it is especially important when going digital. Key questions to ask include: i) Is your mediator tech-savvy? and ii) Does your mediator have high emotional intelligence, particularly important when you are less likely to see a person’s body language on the platform.

Also, Bacon stressed the importance of picking the right platform for your hearing. Some litigators will only use Zoom, while others are die-hard Microsoft Teams fans. But no matter the platform, it’s crucial to stress-test the technology ahead of time, Bacon explained. “Don’t wait until the day of the hearing and think you can log in 15 minutes ahead of time,” she said, advising that lawyers should get all the parties together, including the mediator, and have a dry run. A final practical tip: know the bandwidth of your internet connection to ensure it can handle the ability to stream the hearing without glitches. There are several, free websites that will allow you to speed-test your connection prior to the hearing date.

Pros & cons of virtual mediating

The panelists agreed on a list of pros and cons of the virtual court environment. In addition to scheduling flexibility, for example, other positives include no travel costs and less emotional fall-out, Thomas noted. If you spend hours preparing for a session, including travel time, and the mediation talks stall on right away, it can be mentally exhausting. Not so when you deal remotely. “If things don’t go well, you close your computer and go have dinner with your family,” he said. Finally, virtual hearings allow you to have a plethora of mediator options; you are no longer bound to geographic restrictions when choosing a mediator.

The cons are also just as apparent. Some litigators feel less emotionally tied to the case if they are on Zoom. Also, if there are multiple parties at the mediation, there is a challenge as to when to speak or not, in order to avoid talking over another person. Bacon suggested picking one spokesperson for each side to do most of the speaking when on a virtual platform because it is often hard to organically interject. And finally, the well-known Zoom fatigue can surely creep in, so be aware of that.

At the start of the pandemic, many courts weren’t engaging in virtual depositions, but now they are commonplace. While numerous articles have been written about this topic, the panelists said one of the most important takeaways has been deciding how you will deal with documents and share evidence ahead of time. Of course, you could always go the old-fashioned way and mail items into the court ahead of time; or, there is always email sharing. Or you can be eco-friendly and use one of the many cloud-based court document and evidence management platforms that are available.

Lessons for a post-pandemic legal world

So, will digital court hearings supplant all in-person hearings? It’s very unlikely, especially as we are still learning the nuisances of virtual criminal and civil trials. Yet the pandemic has changed the dynamic and shown us that in-person interactions are not always necessary.

“These are tremendous opportunities here,” Thomas said. “We have a whole host of tools to add to the legal toolbox so we can best serve our clients, move the cases along, and get good results.”