Time of Covid-19 Has Solidified Technology's Merger With Mediation

By Howard R. Marsee and Richard Lord

 

The evolving world of dispute resolution. Mediation, as collaboration to resolve a dispute, has been with us since the mid-1980’s. At its genesis, it met resistance because it was “new” and “different.” However, over the last 30-plus years, it has become ingrained in our legal system and is now so familiar that it is taken for granted in preventing, managing and resolving disputes.

Until recently, mediations were conducted predominantly “live’ or “in person.” Covid-19 has radically slowed many processes associated with the courts, and we are once again faced with the “new” and “different.” The strong need and desire for dispute management and resolution still exists, but we must now look to technology for remote collaboration.

The tools for remote mediation are not entirely new. Even at “live” mediations, telephone participation was never rare, and large corporations have long conducted online business conferences. Platforms for online conferences have been with us for a few years — some of the newer ones being Zoom, GoToMeeting and Webex. Online dispute resolution, although not widely accepted, has gained some following with the advent of e-commerce.

A merger of technology and mediation. The convergence of technology and the need for remote mediation is rapidly accelerating. Although live mediations are still workable with sensible health safeguards, it is now both feasible and effective to mediate remotely with participants in different locations. In short, video-conference mediations are rapidly gaining acceptability — even desirability — within the legal community.

As a full-service ADR provider, UPCHURCH WATSON WHITE & MAX continues to provide live, in-person mediation services with proper health precautions. We also provide a wide variety of virtual ADR services, including videoconference mediations. We are here for our clients today and tomorrow, guided always by the best interests and preferences of those seeking dispute resolution.

Many platforms currently exist for videoconference mediations. Some lend themselves to the process better than others; however, in this time of Covid-19, new platforms are becoming available daily. Security imperfections are rapidly being eliminated by better protections and encryption. As of today, UWWM conducts many mediations via Zoom, GoToMeeting and Webex, but we are constantly striving to improve the process.

Does it work? Yes, online dispute resolution works very well. Our experience has demonstrated that it can be as effective as any in-person meeting. The videoconference provides the advantages of effective communication, convenience for the participants, cost savings, and social distancing. It continues to reward the attention given to the conference and the serious efforts devoted to the process. Long after Covid-19 has gone away, the videoconference will most likely continue to be a valuable tool in the mediator’s and the litigant’s toolbox.

To be sure, issues and questions will arise in the “new normal.” One frequently asked question is how remote mediation participants can obtain signatures on settlement documents. Again, technology gives us useful tools. Many apps exist that enable us to create agreements, scan them, and obtain electronic signatures, e.g., DocuSign and Adobe Sign. Already, settlement documents are beginning to contain language that makes electronic signatures binding.

Some recommendations. Many videoconference platforms allow participants to share documents, videos, and even PowerPoint presentations on-screen during the video mediation. Advocates and their clients should consider in advance what they want to share at the video mediation. Perhaps documents and exhibits can be provided to others by email or mail prior to mediation. Perhaps a proposed settlement agreement might be helpful at mediation. Certainly, a pre-mediation telephone conference with the client will help them better prepare for the mediation.

The advocate should always feel free to reach out to the mediator for a practice video session. UWWM mediators are happy to schedule such a practice session. Indeed, the advocate may want to invite his or her client to attend that practice session. In that way, when mediation day arrives, everyone will be off and running, and the participants can focus on discussion of the issues, analysis, and negotiation—without the stress of an unfamiliar process.

Our promise to you. Upchurch Watson White & Max is dedicated to providing the most professional dispute resolution service available. This includes all modes of mediation and arbitration—whether live, online, or otherwise. Our neutrals now and always stay up-to-date and, as new tools become available, we will share them with you. Toward that end, you might want to explore the following links:

Filling conference rooms won't be a possibility for a while.
Filling conference rooms won't be a possibility for a while.
Cisco Webex
Cisco Webex
Zoom
Zoom
GoToMeeting
GoToMeeting

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