The Case For Virtual Mediation
At the onset of the COVID-19 pandemic and the subsequent shut down of numerous businesses and institutions, New York’s state and federal courts remained open with operations limited to “essential functions.” Most appearances were adjourned without a date to be rescheduled when normal court operations resume.
On May 4, the New York Unified Court System (UCS) launched virtual court operations including an electronic document delivery system that permits court users to file documents electronically to judges and court clerks. On May 18, in-person services in upstate courts spanning five judicial districts began a gradual return to service, albeit with enhanced COVID-19 safety measures. After a two-months long hiatus, UCS permitted the filing of new non-essential actions throughout the state, although new trials still may not be commenced, as of May 25.
Nonetheless, based upon the guidance of public health officials, it is likely that in-person operations in New York City’s state and federal courts will remain restricted at least for the foreseeable future. Even upon reopening, hygiene stations, temperature checks and social distancing will be ubiquitous. Some have even predicted that there will be no civil juries in New York until 2021.
While courts remain committed to clearing their backlogs until normal operations resume, litigants face inevitable delay in case resolution. Within this landscape, New York State’s Chief Administrative Judge Lawrence Marks issued an administrative order authorizing New York state court judges to refer cases to neutrals on court-established panels, including the Commercial Division roster of neutrals. The timing of Judge Marks’ announcement sent a powerful message to members of the bar and to litigants of this state, namely that mediation, even if conducted virtually, is a viable alternative to case resolution pending the resumption of normal court operations.
First, virtual mediation conducted by video conference is safe and efficient. There are undeniable benefits to in-person participation in mediation, including the impact of having decision-makers meet face-to-face and witness one another’s narratives of the dispute firsthand. Parties need time and space to vent while presenting their positions and interests. In doing so, the hope is that the mediator can effectively build trust and goodwill to the point where the parties trust his/her business judgment and ability to propose creatives solutions. However, the advantages of an in-person encounter can be effectively (albeit not perfectly) conjured virtually, provided that the right stakeholders are facing one another on screen.
Zoom has emerged as a popular platform for virtual mediation because it offers the ability to create virtual breakout rooms in addition to offering a function, whereby the mediator can privately chat with parties in one room while being “present” in another private breakout room, discussing and exchanging offers, counteroffers, and options for resolution. A breakout room option is not available in Skype for Business, which is the only platform that UCS authorizes for virtual court operations. With the ability to create virtual breakout rooms, coupled with enhanced privacy protocols such as the host’s ability to control an individual’s entry into the session through a waiting room function, the possibilities of effective virtual mediation on Zoom are endless.
Moreover, given the curtailment of non-essential travel and the obvious dangers of being in close proximity to others in this pandemic climate, video conferencing may even offer several advantages over traditional in-person mediation. For one, virtual mediation limits cost because participants need not expend resources to travel. Lowering costs is an increasing priority of businesses experiencing critical cash-flow deficits in a partially shut-down economy. In the comforts of one’s own home, participants critically avoid in-person interaction that could spread the virus.
Finally, business realities implore us to engage effective alternatives to traditional litigation. Many are predicting a deluge of litigation relating to pandemic business losses. Every sector has been impacted by COVID-19 and the range of potential litigants is immeasurable. Within this morass, litigants face a court system that is operating at limited capacity and upon reopening, inevitable backlog and expensive litigation. Oftentimes, parties pursue a strategy of delay in the hope of avoiding as long as possible the unwelcome news that money is owed. Thus, in the short term at least, taking a “wait and see” approach may seem to be the safest course.
For others, the show must go on, and pursuing closure and certainty may prove to be the soundest strategy of all. Once business claims are swiftly resolved, focus and resources can be devoted to economic recovery rather than protracted litigation. In this unpredictable pandemic climate, virtual mediation should be given serious consideration as a viable path to that end.
Apart from developing one’s own best practices, here are some practices that have contributed to successful virtual mediations for myself and my partner, with whom I often co-mediate. Zoom is our videoconferencing platform of choice, because the host has the ability to create endless virtual breakout rooms which is essential for private caucusing and effective negotiation. Additionally, once assigned to a breakout room, parties can summon the mediator and alert him/or her if they are ready for the mediator to reenter the room. These options are essential, and thus, mediating by telephone or by use of other videoconferencing platforms that lack a breakout room option should be avoided.
It is also essential to confirm with counsel and their clients prior to the session that they have downloaded the correct videoconferencing platform, logged in and familiarized themselves with its basic functions. Scheduling a technical dress rehearsal is also helpful in avoiding delay on mediation day.
Take the session as seriously as one would take an in-person mediation. Participants should dress professionally, prepare comprehensively, and have readily available any relevant documents, which can be quickly screen-shared on Zoom should the need arise. In our experience, participants who are unprepared for mediation are generally unmotivated to settle.
Currently, all of us are working from home which carries forth many distractions. It can be difficult to keep participants remotely engaged on their computer screens. Mediators and participants should consider how they can effectively streamline the process before the session. In addition to a technical dress rehearsal, mediators should plan to have at least one pre-session phone call or videoconference with each side ex parte to frame issues, engage in merits analysis or even open the “numbers game” if conditions permit.
At the beginning of the session, counsel should consider condensing opening statements so that more time can be devoted to caucusing and negotiation. When caucusing with one party, the mediator should frequently check in with the other side to ensure that they remain engaged in the process. Finally, as is true with in-person mediations, the participation of decision-makers with full authority is absolutely critical for the session to be productive.
Orna Artal, Esq. is co-founder of Ramos & Artal LLC, a dispute resolution firm based in New York City where she serves primarily as a mediator in a wide variety of commercial disputes. She is also the editor of the NY Litigator, the publication of the Commercial Federal Litigation Section of the New York State Bar Association.