By Mitch Orpett

Law360 (May 20, 2020, 5:38 PM EDT )

Mitch Orpett

In the midst of a raging worldwide pandemic, it might seem more than a bit ghoulish to turn for inspiration to the author of "Frankenstein," one of the great tales of science gone truly berserk. But, in words that resonate in the current world gone slightly haywire, unhinged as we are from traditional notions of normalcy and stability, Mary Wollencroft Shelley wrote so insightfully, "Nothing is so painful to the human mind as a great and sudden change."

Even in our relatively small but stable world of law and claims, COVID-19 has clearly been an agent for "great and sudden change." While largely uninvited and, to some degree, unwanted, some of the change wrought by the virus will undoubtedly remain long after, when medical science has beaten back the current threat.

Presumably, we humans will have something to say about what does and doesn't remain. As we do, we, like Jack Nicholson's character in "Chinatown," will be confronted with conflicts between what is, what we think should be and what many claim to be "the future."

One arena in which this kind of sudden change is already being debated is that of mediation. Given the rapid and dramatic rise in the use of live mediations over the last decade or so, the near total loss of any opportunity to conduct live mediation is clearly a major event and leaves a significant hole in the process of presenting, disputing, litigating and resolving claims. And yet, life goes on, even in isolation or quarantine and, somewhat surprisingly, so have mediations.

Thanks to a number of platforms such as Zoom, Microsoft Teams and FaceTime, parties are still able to get together with a mediator and attempt to resolve their differences. Many report excellent results and the dispute resolvers of the world are now engaged in a full-throated campaign to encourage the use of this technology to make virtual mediation the new normal.

It should be noted, however, that the fact that we are "able" to conduct remote mediations is not necessarily a reflection of their worth. The question is fairly presented, though: Will remote mediation become the new "thing" and become the method of choice for resolving claims? Or will it, like hula hoops, mood rings and the Macarena, become a largely forgotten relic of a time whose day is past?

This article attempts to address that question by examining the perceived advantages and disadvantages of remote mediation and offering at least one practitioner's assessment of their validity and utility.

Perceived or Cited Advantages of Remote Mediation

Presently, there are two undeniably huge advantages to conducting remote mediations — they can be done and no one need risk life or health by "attending." In a time when the alternative is essentially to allow lawsuits and claims to stagnate, these alone may be reason to put any other objection aside.

Presumably, however, we will emerge from the dark cloud of COVID-19 and will once again see courtrooms crowded with litigants and resolution centers peopled with warring parties and aspiring peacemakers. Putting aside, then, the exigencies of today, will remote mediations continue to be a solution sought out by lawyers and their clients or by the insurance companies that tend to drive what does and does not happen in the world of claims?

Other legitimate advantages are also often cited by those both offering and participating in remote mediation: time, expense, ease of scheduling, and greater participation of true decision-makers. One can also find anecdotal claims that remote mediations also result in greater courtesy and less posturing among the participants, reduced stress and better use of the "dead" time that inevitably results when the mediator is off talking to the other party (aka more efficient multitasking).

To the extent that those controlling or paying the costs of litigation and claims resolution are driven predominantly by the almighty dollar, remote mediation offers a likely significant savings, particularly when an in-person alternative involves travel.

A requirement that an insurance company claims professional, for example, travel to a distant city for a live mediation results in both increased out-of-pocket expense and considerable loss of time, resulting in greater inefficiencies and ultimate company costs. The savings implicit in remote mediations may, alone, be enough to convince many in the industry to proceed on a wholesale basis with remote mediations, even after COVID-19 no longer prevents us from appearing in person.

This is especially true given that it will be extremely difficult, if not impossible, to cogently demonstrate any real difference in the outcomes of remote versus in-person mediations. The upfront savings are real. How valuable they are viewed and whether they warrant continued use of remote mediations will undoubtedly differ among various companies and firms.

The arguments posed by some that remote mediations lead to increased civility and less posturing appear to this practitioner as highly speculative if not patently inaccurate. Good behavior, while laudable, probably has nothing to do with the medium and one suspects that, once we all get used to remote mediations, we will act with the same level of professionalism and civility as we do in person.

There is nothing inherent in Zoom that makes us better people or better behaved. Still, for as long as the noted "pandemic nice guy" is found to exist and to the extent that we emerge from COVID-19 resolved to be nicer to our colleagues, no criticism will be offered from this quarter.

Perceived or Cited Disadvantages of Remote Mediation

On the other side of the ledger, there are some who contend that remote mediations deprive them of the use of some of their skills. In particular, seemingly the most common complaint is that remote platforms simply do not enable the participant to use all of her faculties to assess what is going on with the other players — be it the mediator, opposing counsel or the parties themselves (including our own clients and the insurers).

While these folks, who have unfortunately been derided by some as "traditionalists" or "old-fashioned," recognize that a claim can still be resolved in this fashion, they believe that, without in-person opportunity to gauge body language and other nonverbal communication, they simply cannot be as effective and cannot drive as good a result.

One cannot help but suspect the existence of a generational divide on this issue. There are those of us old enough to give considerable credence to the notion that human observation and intellect can offer insights not achievable through the artificial intelligence.

In contrast, those reared on (or by) smartphones often see no significant gap between machine and human intelligence and view available technologies as a facilitator rather than an obstacle to reaching desired results. The difference is real — as are different individuals' capacity and skills in utilizing the various systems and processes available to lawyers and their clients.

For some, the disadvantage of not being in the same room as their clients, the mediators, and the opposing attorneys and parties does make for a compromised effort to settle. The results for those individuals — whether measured in dollars spent or in the number of settlements actually reached — may be worse.

Somewhat more nuanced is the perceived disadvantage of remote mediation resulting from the attorney's reduced ability to control communication. While this "control" does not exist in an absolute form in live mediation either (short of walking away from the process entirely), it would appear that, in a remote mediation, the control of communication by anyone other than the mediator is reduced. With the tap of a screen or the stroke of a computer key, the mediator can shut off communication rooms, walk away from a party (whether deliberately or without realizing that he or she has done so) and pick up elsewhere.

Attorneys lose at least some of the ability to use silence to make a point or to force the mediator to consider alternatives. No longer will they be able to catch the mediator in a backroom grabbing an early sandwich or strolling in the hallway while the parties are left to reflect on their positions.

There are in-person phenomena that simply cannot be replicated in remote mediation. Some attorneys and clients rely on that phenomena or at least use them well to help effectuate good results. Others, frankly, do not and, for them, the fact that a mediation is conducted remotely is of no moment and has no effect on the results they can achieve.

The question of control also arises in how the technology itself is used. For example, is the mediator placing the attorney and her client in separate "rooms?" If so, does the mediator have the ability to speak directly with the client without the attorney being aware of it?

Whether or not this is ultimately an advantage or disadvantage or totally neutral, the "rules" or practices to be followed in conducting a remote mediation need to be explored in detail before the mediation begins and understood by all. Once counsel understands how communication will be handled, appropriate strategies can be planned and preparation of the client and any involved insurance company representative undertaken.

Another issue that should be explored and understood before conducting a remote mediation is that of interparty communication. At times, live mediations involve one party talking to the other or counsel speaking directly either with or without their clients and with or without the mediator. This may be a bit tougher to incorporate in a remote mediation if the parties and counsel have not agreed to it before the mediation begins, especially given the seemingly increasing number of mediations in which the mediator never brings the parties together.   

Finally, we should all remember that Zoom, Facebook, LinkedIn, Apple and Google have all been accused of security breaches or invasion of privacy. This fact highlights a continuing issue with the use of ever-developing technology — the lack of security and even the potential loss of privilege.

In mid-April, Zoom was sued and accused of failing to protect user data from Facebook and LinkedIn. The suit alleges unjust enrichment, intrusion upon seclusion, invasion of privacy, unfair business practices, and trespass to owners' computers and mobile devices. Whether or not these allegations prove to be true, they nonetheless serve to highlight how little is known by the average user of the various available platforms about precisely how they work and how they might affect privacy and privilege concerns.

Reports of early Zoom meetings "bombed" by hate speech and pornography were abundant and, like any emerging product, unexpected problems and flaws continue to emerge and be identified. While unlikely to affect any single remote mediation, there is nevertheless a legitimate question about how legal doctrine will intersect with the use of new technologies in the judicial system.

This discussion dangles on an assumption that is, perhaps, flawed. Mediations either resolve cases or they don't. "Success" is an ambiguous term and can be defined differently in different cases. In a world where one often hears that "a closed case is a good case," it may be that, ultimately, few really care about whether some dollars might have been saved in one form of mediation over another, as long as they both end in resolution. An attorney's goal to reach the "best possible" settlement may be different than the client's desire to "get the case settled," in which case in-person versus remote mediation probably matters little.

Conclusion

One thing at least is evident. Remote mediations will be used as long as we are forced to conduct business from our homes and the courthouses and mediation centers are closed to normal business. What comes after is anyone's guess, but it is not difficult to imagine our world in which both live and remote mediations are common.

As with any mediation strategy, the question of whether a mediation should be conducted on a live or remote basis should be determined by the particular circumstances surrounding the case and the parties. How much is at stake? What is the relationship between or among the parties? Who is the mediator and what qualities will that mediator bring to either a live or remote session? How technologically savvy are the various participants and what are the constraints on their time, travel and budget? All of these questions should be asked and addressed before making a decision about going live or staying remote.

The move to remote mediation has already happened, and it is highly unlikely that we will see that particular genie go back into the bottle. As such, all of us should take whatever pains may be necessary to understand and grow proficient in the technology of remote mediation. It does no good now to sit back and bemoan the absence of body language or the inability to eyeball opponents. If those are concerns, choose not to use a remote mediation — assuming you have the choice.

Mocking the system and railing against the technology will only reveal more about you than about remote mediations. As was so aptly written in the play "Inherit the Wind," where the fictionalized William Jennings Bryan talks with the character based on Clarence Darrow and bemoans how they and their ideas have come in conflict over time: "Why is it, my old friend, that you have moved so far away from me," he asks. The Darrow character replies, "All motion is relative. Perhaps it is you who have moved away — by standing still."

By the same token, remote mediations are not going to be a panacea for all that ails the dispute resolution industry and not everything about them is going to be as smooth or effective as some in-person mediations. It is not, as some have suggested, a manifest sign of obstinance or dotage to question the process or identify the areas in which it poses greater challenges or potential barriers to successful outcomes. Different skill sets will legitimately lead to different preferences when it comes to resolving claims and the world, I would submit, is big enough for them all.

With that view in mind, it becomes easier to see that remote mediations are clearly "the future" and is not an illusion but that those anticipating a brave new world of technology-driven resolutions and the disappearance of the past are likely to find that, as George Orwell suggests, "progress" will be slow and somewhat disappointing.

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Mitch Orpett is a founding member at Tribler Orpett & Meyer PC.

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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