By Jeff Kichaven

Law360 (April 6, 2020, 2:47 PM EDT )

Jeff Kichaven

Mediators are selling online video mediation these days. The evidence is in every litigator's social media feed and email inbox.

But are litigators buying? The evidence is not clear.

To determine demand for online video mediation, I conducted an informal email survey of over 200 first-chair business trial lawyers and senior claims executives from around the country, many of whom have been my mediation clients. I received email replies from nearly 100, and had telephone conversations with 20 or so. Very few have experienced a video mediation. By a margin of about 4-to-1, respondents are reluctant to adopt this new technology. But most are willing to keep the option open.

Here's a typical response, from Jeff Charlston of Los Angeles' Charlston Revich & Wollitz LLP: "I would be reluctant to participate in other than a face-to-face mediation because, rightly or wrongly, I would not expect a video mediation to have as high a success rate as a mediation where all necessary parties are present."

Many, such as Jim Holmes of Clyde & Co. LLP in Los Angeles, are reluctant because they believe they can observe more nuance and detail in person: "There's something about being able to see others to judge reactions, credibility and limits; the personal touch. Nothing quite equals face-to-face to detect other messages."

Or, in more unvarnished terms from another respondent, whose name is withheld for obvious reasons: "I hate video mediations. For 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."

This reluctance is grounded in reality. Online video mediation is, in general, just not as good.

The Harvard Law School Program on Negotiation reported this on March 26:

Negotiation thrives on physical presence. Handshakes, eye contact, shared meals, and long meetings in stuffy conference rooms are everyday tools of the trade, and with good reason: Negotiators who meet in person reach better deals than those who negotiate online, research shows. Face-to-face meetings offer invaluable nonverbal and verbal cues, such as eye contact, body language, and tone of voice, that facilitate understanding and build lasting bonds.[1]

The research cited does not really support the author's conclusion. That research involved only a comparison between face-to-face negotiation and negotiation via email. Even so, the experience of the real world shows the conclusion to be sound.

Most promotions for video mediation involve Zoom. Zoom is hardly a new technology. Zoom's Wikipedia page states that the service began in January 2013.[2] In February 2015, the number of people using Zoom meetings reached 40 million. Yet until last month, nobody talked about Zoom as a viable platform for mediation (though some writers had for years touted various versions of online dispute resolution).

As Steven Brower of Orange County's Brower Law Group 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.

Respondents familiar with videoconferencing confirmed video mediation's shortcomings.

As Sheldon Eisenberg, Los Angeles office leader at Faegre Drinker Biddle & Reath LLP put it: "I believe that [a video mediation] would negatively impact my ability to interact with and appropriately read my client. I often see it on videoconferences inside and outside of my law firm. The 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."

In more candid moments, many mediators agree. Here's what one prominent mediator, who asked to remain anonymous, said after his first video mediation: "The lawyers seemed harder to read while the litigating parties themselves seemed a bit out of it."

So, don't expect litigators to flock to video mediations. Until they need to. And for at least a little while, they don't.

As Justin Kudler of AXA XL in Connecticut put it to me, the number of cases that need mediation is a subset of the number of cases that need to be settled. What catalyzes settlement better than anything else, though, is a looming trial date. And trial dates all across the country have been vacated for weeks or months to come.

Howard Wollitz of Charlston Revich described the effect of this: "I do not anticipate significant demand for video mediation. The reality is that many mediations get scheduled only as trial dates approach. Trials are being put off by the courts, so I think mediation scheduling will be pushed off as well."

This is confirmed by conversations with mediator colleagues all over the country, as well as my own experience. Previously scheduled mediations are dropping out faster than presidential candidates after Super Tuesday.

The ability to avoid settling and mediating will not last long, though. COVID-19 is filling everyone's lives with new challenges, many of which will become disputes and ultimately lawsuits. To make room for these, clients and lawyers will have to put many of their current lawsuits to rest. So even without trial dates looming or expensive discovery impending, clients' business and personal needs will impel them to pay a little more, or take a little less, to put shopworn disputes behind them. In hard-to-settle cases, people will still need mediators to help them.

With shelter-in-place orders in effect, though, face-to-face mediations will be impossible. So, just as many first-chairs were dragged kicking and screaming to mediation 25 years ago, their son and daughter first-chairs will be dragged to video mediation today — or in 30 days or 60 or 90. Some will love it. Some will adjust grudgingly. Still others won't find it their cup of tea.

Two conclusions seem obvious.

1. Video mediation is here to stay. Or at least, it's not about to disappear. Video mediation will come to be considered in every case, just as face-to-face mediation came to be considered in every case 25 years ago.

2. Video mediation will not become a one-size-fits-all solution. Indeed, nothing in mediation should be one-size-fits-all. Lawyers will have to decide on a case-by-case basis whether a particular mediation should proceed face-to-face or online. Video is a tool that will sometimes be right for the task, sometimes not.

Stanford University scholar Thomas Sowell famously wrote, "There are no solutions, only tradeoffs." Let's therefore consider a few of the tradeoffs in deciding whether video mediation is the best choice in a given case.

The Obvious Plus: Cost

Commercial mediations increasingly require many people from many places to participate. Travel to the mediation site can be a challenge. A one-day mediation can be a three-day enterprise, with a day to get there, a day to mediate, and a day to get back. That's expensive.

With a video mediation, time and travel costs are saved. And as a corollary, when we are looking at a one-day commitment rather than three, we can schedule mediations on much shorter notice. These benefits can be significant.

The Surprising Minus: Lack of Teamwork

Many respondents believe that physical separation from their clients in video mediations will diminish the quality of brainstorming and negotiation.

Here's one typical comment, from a prominent litigator in Chicago, who asked that her name be withheld: "My clients take some comfort with me sitting next to them. We are more in it together when we are together physically as a team and can whisper and signal things to each other. Relatedly, I would be less likely to go out on a limb on video, in a way that might be productive, without my client sitting next to me."

This lack of teamwork can extend beyond the formal aspects of the negotiation.

Ray Gallo of Gallo LLP described face-to-face mediation as the best client relations tool since golf: "There's also value in the lawyers being physically with their clients, telling stories, talking about the case, talking about personal things, and connecting. That personally present connection can't happen remotely."

While these minuses are hard to quantify, it's hard to deny that they are real.

The Obvious and Surprising Wild Card: Partial Attention

Not surprisingly, many respondents value the focus of an all-day, face-to-face mediation as a catalyst to settlement.

Gallo continued: "Mediation works in part because everybody has made a significant commitment to getting a deal by showing up, participating and being there (hopefully) late to get it done. In fact, the longer people stay, the more likely a deal is, psychologically, as people are more invested. That physical investment can't happen remotely."

Building upon this, an insurance coverage litigator in Los Angeles, who asked that his name be withheld, viewed the negative impact on negotiation in these terms: "[In a video mediation,] it is too easy to pull the plug on a session. And, for the times when walking out of a mediation is necessary to send a much-needed message, there isn't the impact."

Here's how Cyndie Chang of Duane Morris LLP in Los Angeles phrased it: "There's just something magical that happens when you can look someone in the eye or when you make clients travel and appear to attend a mediation, which is disruptive to their normal routines. In contrast, remote working situations are full of distraction and may impair the focus of the participants in the mediation."

To other respondents, though, the possibility of partial attention at a video mediation is a plus. Some lawyers commented that they would welcome the ease of turning to other work when the mediator was not with them.

And, we often bemoan the physical absence from the mediation of "the real decision-maker for the other side." It may prove easier to get "the real decision-maker" (generally a very busy person) to participate if we can promise that decision-maker an easier ability to get other work done during the mediation day.

Plus, we mustn't forget that even at a face-to-face mediation, partial attention is all we get.

As Sam Lewis of Cozen O'Connor in Miami put it: "Let's face it, it is common for parties to set up in separate rooms, to have access to email and the web, and just about everybody has a smartphone. Thus, we're already at a point where parties can use time to deal with other work and other clients."

Still, there is a real concern. Success in mediation depends on people getting second thoughts. But getting second thoughts about a subject presupposes that one is having thoughts about a subject at all. If distractions cause one's thoughts about the mediation to fall below some threshold, there will be a price in brainstorming, creativity, epiphanies.

Lawyers must weigh these trade-offs, and more, on a case-by-case basis, when they decide whether the benefits of a video mediation outweigh the costs.

Finally, we must face the fact that this may all look very different very soon. One Chicago litigator, who asked that his name be withheld, told me, "The firm is operating at a level of technological sophistication unimaginable even one month ago." Who knows whether reluctance to use video for mediations will melt away as the technological sophistication of lawyers continues, out of necessity, to accelerate.

I wonder whether our concerns about online mediation will, sooner or later, seem of a piece with these early reactions to another technological innovation:

On March 10, 1876, a new invention sent an invisible electrical signal through a pair of copper wires. On the other end of those wires, the signal was converted to sound waves and Alexander Graham Bell's assistant heard the now-famous words: "Watson — come here — I want to see you."

Later that same year, across the Atlantic, the chief engineer at the British Post Office boldly claimed that "The Americans have need for the telephone, but we do not. We have plenty of messenger boys."

Meanwhile, over in America, the President of the Western Union Telegraph Company asserted that "This 'telephone' has too many shortcomings to be seriously considered as a means of communication."[3]

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Jeff Kichaven is an independent mediator with a nationwide practice. He specializes in insurance, intellectual property and professional liability matters.

Disclosure: Chang, Brower, Eisenberg, Gallo, Holmes, Lewis and Wollitz, quoted above, have been Kichaven's mediation clients over the years.

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.

[1] Katie Shonk, Online Negotiation in a Time of Social Distance, https://www.pon.harvard.edu/daily/negotiation-skills-daily/online-negotiation-in-a-time-of-social-distance/, March 26, 2020.

[2] https://en.wikipedia.org/wiki/Zoom_Video_Communications.

[3] Melis, "Bitcoin critics are on the wrong side of history," https://medium.com/@melis.io/bitcoin-skeptics-are-on-the-wrong-side-of-history-a61899f4c355.

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