Essential Dispute Resolution

The COVID-19 pandemic is impacting all of us in ways we did not expect.  For those involved in litigation, we are entering difficult and uncertain times, with courts limiting their services and jury trials on hold.

Mediation is more important than ever.  We are transitioning from “alternative” dispute resolution to “essential” dispute resolution.  If, for concerns of public safety, the courts cannot provide timely and predictable ways to resolve disputes, mediators must make this happen, safely, securely and effectively.

The traditional mediation framework, where counsel and parties travel from distant places to converge in a central conference room, shake hands and negotiate face-to-face, is no longer a given.  Self-isolation, quarantines, office closures and social distancing are part of a new vocabulary that none of us spoke just a short time ago.

I have long advocated for personal attendance at mediations:  it improves communication, allows for more personal engagement and, candidly, improves prospects for resolution.  Going forward, personal attendance may not be the operating assumption.  As safety concerns mount, it may not be the right decision.

In my own mediation practice, I am getting trained and comfortable with technological work-arounds that will allow mediations to continue.  These include remote video participation, where the parties and counsel can join mediations from home using phones, iPads or laptops. 

With new platforms we can conduct joint sessions with all participants, and, importantly, transition to breakout rooms where parties and counsel can talk privately and securely by themselves or with the mediator.  

Any of us who have used technology in jury trials know that when you rely on machines, things can and will go wrong, often when you least expect it.  But, we have to make this work and we will.

Be safe, be calm and be adaptable.  We will continue the vital mission of resolving disputes.  We will get through this.