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The worldwide pandemic has slowed many commercial activities and brought others to a halt. Unfortunately, the sources and causes of disputes and conflict continue. In some sectors, the coronavirus and efforts to contain its spread have led to new and immediate conflicts. Supply chains are being disrupted. Managing workforces becomes more difficult while adhering to social distancing guidelines. Parties everywhere are re-reading their contracts to see if there is a force majeure provision that can be invoked. In many places, the courts are closed or restricted.

As businesses suffer through this crisis, it is more important than ever that disputes get resolved in a timely and efficient way. And there is a time-tested solution to this problem: mediation. With a new twist, thanks to social distancing.

The research on the effectiveness of mediation has been extensive, and it is unanimously positive. Mediation can resolve disputes faster and more economically than litigation. It also allows the parties to craft solutions that might not be available in the traditional litigation setting. It may also preserve relationships between parties that might strain past the breaking point if litigation were pursued.

Traditional mediation involved gathering together all the relevant party representatives, their counsel and the mediator for a face-to-face meeting that may last hours. Obviously, this process is not available or advisable for at least the next several months, maybe longer. So how can mediations be accomplished in the age of coronavirus? Through the abundant technology now is wide use.

There are numerous platforms that are well suited for use as a mediation medium: Zoom, WebEx, Blue Jeans, Samba, and Lifesize… to name just a few. There has been a recent explosion in the use of these technologies—not just for mediation, but for all teleconferencing—as individuals and companies try to continue moving the wheels of business forward even as they respect the guidelines of physical distancing. The world of ADR has kept pace with these developments. This method of mediating has been referred to as "virtual mediation" or "remote attendance mediation."

Can it be effective? If done right, it certainly can.

How good is the technology?

In short, these online social platforms perform well. Many have been used for years to host meetings in order to cut down on travel expenses. The switch from a collaborative online meeting to a multiparty online mediation, it would appear, can be accomplished smoothly.

Most of these platforms now offer a "break-out" room option. The mediator, acting as the host, can separate the parties into separate virtual rooms. In this way, each party and its counsel can discuss the matter in private. This separation can be done after an initial opening session involving all parties. The mediator can then shuttle back and forth between the separate break out rooms just as he or she would do in a real office setting.

How effective is virtual mediation?

The skepticism about virtual mediation is the perceived lack of human connection inherent in remote, electronic attendance. After all, in-person, face-to-face mediations allow the mediator (and to some extent, the participants) to evaluate the visual cues, body language, and facial expressions of those involved.

Good mediators can still pick up on these cues, however, even though the participants are distant. Prior to the pandemic, a fair number of mediations would end for the day before a resolution was reached, but with the plan that the mediator would follow up by phone. Mediation using technology has been a part of mediation for decades—this just the newest, most sophisticated version of that, borne of necessity.

Is it secure?

These platforms have recently beefed up their security measures. Meetings can be set up to require a password to enter. Some platforms offer a virtual waiting room so that the mediator allows entry only to those entitled to attend.

Mediation in the age of COVID-19 can be almost as effective and perhaps more efficient than mediation before the pandemic. Just make sure you select a mediator adept at this new technology.

 

Patrick R. Kingsley is a partner at Stradley Ronon and serves as chair of the firm's ADR practice group and Construction practice group. He is an experienced mediator and arbitrator.  He is a panelist on the American Arbitration Association's list for large and complex construction disputes.  He is a fellow of the American College of Civil Trial Mediators and a distinguished neutral with the International Center for Conflict Prevention and Resolution and the National Association of Distinguished Neutrals and is a panelist with the Financial Industry Regulatory Authority. He can be reached at [email protected] or 215.564.8029.