Category Archives: ADR

Is Online Mediation Here to stay?

Before the Pandemic

I didn’t do a lot of online mediation prior to the pandemic. I did some online dispute resolution (ODR) in connection with my work as a mediator and arbitrator for the American Arbitration Association. That work mainly consisted of telephonic preliminary hearings and telephonic final hearings in cases with less than $10,000 in controversy or upon the request of the parties. I also served as a mediator in a few hearings where one or more parties appeared virtually. However, online mediations didn’t constitute more than 20% of my practice before the advent of COVID-19. Since April 2020, however, I’ve become an old pro at online mediations (and ODR in general). At this point in time, 100% of my mediation practice is conducted online.

Changing Perspectives On Online Mediation

My my how things have changed since April, 2020. Courts all over the country (and the world) began holding hearings (and even trials) online. At first, lawyers, judges, arbitrators, mediators, insurance industry professionals and even some clients were predictably resistant to online mediations. They complained about the lack of in-person interaction and claimed that face-to-face mediations, depositions, hearings, etc. were infinitely better than virtual proceedings. As time went on, however, the legal industry became more accustomed to using technology, and attorneys, mediators, and other legal industry professionals became adept at communicating effectively on a virtual basis. Once that happened, they began to appreciate the benefits of online mediation and online dispute resolution in general.

I realized that the tide had begun to turn when, while waiting for a mediation conference to begin, one counsel mentioned how easy it was to participate in online mediations. He even joked about never going back to the old ways. Since then, I’ve seen numerous articles about law firms deciding to reduce their office space footprints and allowing their attorneys to work from home.

My Thoughts About Online Mediation

I, for one, have enjoyed conducting online mediations and arbitrations from my home office. It allows me to minimize my exposure to COVID-19 while still serving my mediation and arbitration clients to the best of my ability. Being able to move parties and their counsel into separate breakout rooms and have in-depth discussions with them during mediations gives me opportunities to connect with them which helps to facilitate dispute resolution. Being able to watch testifying witness’s faces close-up during arbitration proceedings helps me to evaluate truthfulness and gives me all the access I need to serve effectively. Plus, I can re-watch portions of the testimony recordings if I need to.

Finally, and most importantly, I haven’t seen any major difference in the settlement rate of online mediations versus in-person conferences. In fact, parties seem more inclined to stay and work things out now that they’re not trying to beat rush hour traffic or running off to catch flights at the end of the day.

Schedule an Online Mediation or Arbitration Today

If you’re running up against a court ordered mediation deadline or are otherwise ready to resolve your dispute, contact us today to schedule your online mediation or arbitration. We’d love to help you.

So, tell me, what do you think about online mediation? Would you be willing to continue using it in the future or do you prefer in-person proceedings? Let me know in the comments.

Litigation: Not the Only Answer

“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often the real loser — in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.” – Abraham Lincoln

The above quote by Abraham Lincoln makes me think of how we lawyers sometimes lose sight of the fact that winning in litigation  (as opposed to reaching a mutually agreeable resolution to a dispute) may not always be the best outcome for the client.  While there are certainly advantages to being definitively declared a winner by the Court, winning can indeed be a hollow victory after years of litigation and appeals, hundreds of thousands of dollars in attorneys fees and costs, thousands of man hours spent, and burnt bridges.   Sometimes it just makes more sense on a business and/or personal level to find an alternative resolution to a dispute – especially if there is an ongoing relationship between the parties or if the client’s time is better spent on cultivating or developing its business.

Sometimes, the best decision is to fight until the bitter end.  Either way, it is important to make an informed decision as to which avenue to take and to explore all of one’s options and goals before embarking on a particular path.  Luckily, it’s never too late in the litigation process to explore creative and amicable solutions to disputes.  We’ll discuss this issue further in future blog posts.