HOW COVID-19 CHANGED MEDIATION
Even though telephone and closed circuit media have been used by mediators for years, the traditional popular belief was that when disputing parties or their attorneys are physically together the likelihood for a settlement is greatly increased. But the last thing anyone wanted during the Covid-19 pandemic was to be in a small room with others for hours at a time.
Many mediators turned to what had long been referred to as ODR, or online dispute resolution, and after a short time of wide use and acceptance, ODR is now here to stay.
Actually, ODR today refers to a wide range of technological support ranging from online forms, dispute resolution software, and video platforms, such as Zoom or Microsoft Teams, whihc are sometimes used independently and at times together.
While the original motivation was Covid compliance, here are the continuing advantages of ODR:
People can participate from anywhere. Scheduling became easier as parties could participate while on trips, etc.
Safety is enhanced. In some mediations such as those physical or psychological safety is an issue, remote participation offered the opportunity to participate from locations unknown to the other party.
The pool of mediators is greatly enlarged. Mediators can conduct sessions from another state or country.
Time is less of an issue. If the parties and mediator are willing, the session can be conducted during the evening or weekends.
Physical space becomes less of an issue. Some locations are limited in space for separate meetings. It’s simple to set up virtual meeting rooms for attorneys to confer with their clients and for mediators to caucus with participants individually.
Flexibility. The virtual option allows for easy sharing of exhibits and documents.
Tech Perks. The technology is developing to allow screen captioning and interpretation.
Because mediators have become comfortable and skilled with ODR, it’s unlikely face-to-face mediation will return as the dominant mode.
There are some cautions, of course. Not all participants are comfortable with the technology, nor have adequate equipment. And finally, privacy is a concern. For example, the mediator might lose control over the physical environment around them, such as children coming in the room or unknown third parties listening in. The mediator also has no control of parties recording the mediation other than their promise not to do so.
Even Amazon’s Alexa and other virtual assistants could possibly record the mediation.
It remains to be seen all the ways in which the Covid crisis impacted the profession of mediation for the better, or not, in the years ahead.