In 2020, our world seems more unsettled than ever before in our lifetimes, as the coronavirus (COVID-19) pandemic has killed thousands, sickened millions, and disrupted our daily routines in countless ways. In the United States, federal, state, and local laws and legal systems are adapting as quickly as possible to new realities in the wake of the pandemic. The courts, cornerstones of our government’s judicial branch, have been particularly hindered across the country, as many courthouses have closed and judges have been forced to postpone in-person trials and hearings. Social distancing, stay-at-home orders, and other safety measures have rendered group gatherings, like those we would typically expect in court and jury rooms, for example, impractical or impermissible in keeping with efforts to protect citizens from the spread of COVID-19.
Though we have limited ability now to meet in person, and many of our courthouses are temporarily shuttered, disputes linger and fester. Resolutions remain to be discovered. Problems persist, but mediators are finding virtual ways to provide relief.
Methods of alternative dispute resolution (ADR), like mediation and arbitration, are flexible tools that, even during a pandemic, can provide litigants and backlogged courts some much-needed relief. Mediation is a process in which a third-party neutral—the mediator—helps parties arrive at mutually agreeable solutions to conflict outside of court. Mediation typically offers a range of potential advantages compared to trying a lawsuit before a judge or jury, such as cost and time savings, the parties’ ability to control the outcome of their case, confidentiality, certainty, reduced stress, and overall flexibility.
Although mediators have traditionally assisted parties to resolve disputes through face-to-face processes, conducted in conference rooms or courthouses, mediation practice has quickly adapted in response to the COVID-19 crisis. Across the country, mediators are increasingly using different forms of technology and online dispute resolution (ODR), which allow parties to negotiate remotely, to continue to resolve lawsuits and disputes even in an age of canceled hearings, postponed trials, and social distancing.
If you are involved in a workers’ compensation, personal injury, child custody, or other type of case potentially suitable for mediation, you might be able to mediate your dispute virtually, using your phone, tablet, computer, or other similar technology. If you have hired a lawyer, your attorney should be able to advise you as to available options, including ODR. As physical workplaces are temporarily evacuated as we remain home in isolation and quarantine, technology and online platforms, with the help of smartphones and computers, allow us to communicate and remain connected from practically any location.
Mediators can use virtual tools to help parties reach agreements to settle their lawsuits through a range of online dispute resolution options. For example, mediators increasingly offer dispute resolution services using videoconferencing platforms. The term "ODR" is often used to include also other technological tools that can be used to help resolve disputes, like email, text messaging, and more. But at the moment, video has seemed to vault to the forefront as the most commonly discussed online mediation technology.
Through videoconferencing platforms like Zoom, WebEx, Google Meet, GoToMeeting, and others, mediators can “meet” with the parties in a lawsuit, help them communicate and negotiate with each other, and work toward agreements acceptable to all parties to resolve their lawsuits. Mediators can replicate, through video, the structure of a mediation process, enabling parties to see and hear each other, share audio and video, as well as other digital files, and even execute settlement documents remotely through online tools. Mediators can meet with parties together in joint session or separately in private meetings—using virtual “room” groupings—and conduct back-and-forth discussions, using these platforms, that ultimately help the parties move toward resolution.
You can think of videoconferencing platforms as providing an online conference space to conduct mediations. Normally, in advance of a scheduled online mediation, all parties will receive electronic instructions inviting them to “join” the mediation. Your mediator might also reach out to you and your lawyer, if you have one, and confirm that you understand how to use the platform and are able to log in with sufficient equipment and Internet access. Once that has been arranged, at the scheduled mediation time, participants click a digital link from a desktop or laptop computer, tablet, or smartphone, and enter a private, virtual meeting. After you are connected, the mediator welcomes you by audio, video, or both, and your mediation is underway.
Just as in a face-to-face, in-person mediation, through the video platform, your mediator can talk with the parties in a shared “room,” and the parties have the opportunity to greet each other in joint session. At that time, the mediator can explain the mediation process and answer any questions, and he or she will likely explain the mediation procedure and ask you to agree to abide by the procedure’s terms or guidelines. Where appropriate, the parties may then exchange opening statements.
Using an appropriately enabled ODR platform, a mediator can also separate the parties and speak with each side in private, virtual “caucus” rooms. This allows each party to discuss its case with the mediator confidentially and separately from the opposing party—just like you would in a face-to-face caucus room setting—through a private videoconference.
During your videoconference mediation, the mediator can “enter” and “exit” each side’s caucus room, gathering and conveying information, asking questions, and communicating settlement proposals between the parties. The mediator may also bring the parties together in additional joint virtual “rooms,” and videoconference with attorneys separate from their clients, depending on the participants and underlying facts and circumstances of your case. During the mediation process, your mediator will try to help the parties build areas of agreement, identify other areas where there might be room to compromise, and aim to find acceptable settlement terms that satisfy all parties.
Though mediating remotely is different from mediating face-to-face, ODR technology, including videoconferencing, has advanced to the point that parties do not need to be physically in the same room to communicate and resolve disputes effectively. Even as courthouses have had to close and suspend or delay judicial proceedings in response to COVID-19, and will likely remain backlogged for the foreseeable future, mediation provides a viable alternative to court in many situations.
In short, videoconferencing and ODR can provide an opportunity to use remote mediation and take advantage of tools that let you move your case forward in times of physical separation. If you are involved in a workers’ compensation, personal injury, or other lawsuit with an insurance adjuster or opposing party potentially suitable for negotiation, you might consider consulting an attorney and investigating whether online mediation is an available and appropriate option.