Where Do We Go From Here? A Look at the Future of Virtual Mediations

Jennifer L. Parent
Director, Litigation Department & Chair Business Litigation Practice Group
Published: New Hampshire Bar News
October 20, 2021

Two weeks.  I recall the ask clearly in March 2020 – please plan to work from home for two weeks in an effort to slow the emerging spread of the coronavirus.  We now know with the benefit of hindsight that these two weeks were only the beginning of a longer remote work plan and a catalyst for a “new normal” for our world.

In short order, courts and legal practitioners were using technology at an unprecedented rate.  While electronic filing existed before the pandemic, remote or virtual hearings and depositions were still novel concepts or only lightly used by some.  One area that experienced this remote revolution was alternative dispute resolution or, more particularly, mediation.

As remote work continued into 2020, practitioners found themselves considering virtual mediation.  With this emergence, however, came the hick-ups that happen when learning new technology, the well-used phrase “you’re on mute” or maybe more importantly “you’re not on mute,” and the increasing need to be flexible and open to a different way of doing things.  Virtual mediations soon picked-up in pace, and their use has continued well into 2021.

Considering the changes and adjustments caused by the pandemic, what will the new normal for ADR look like?  How effective have virtual mediations been for lawyers and their clients in various practice areas?  Are virtual mediations here to stay or will they be a footnote in the history books?  I reached out to some practitioners to get their take on these questions.

Jim Tenn – Domestic Relations Litigation, Tenn And Tenn, P.A.

“With the emergence of the COVID-19 pandemic, virtual Mediations over Zoom or other online platforms have become common place in domestic relations cases.  As a mediator and as counsel for parties, Zoom mediation sessions have allowed parties to resolve cases at a time when in person mediation was restricted due to COVID-19.  These virtual mediations have provided a workable forum and a productive substitute to in person sessions.  My experience with online mediation is that it works.  Even high conflict cases have successfully resolved using a virtual platform.  One major difference now from pre-pandemic mediations, is that counsel and clients must be diligent to establish contact prior to mediation to ensure that appropriate preparation has taken place, when in-person meetings have not been able to occur.  The limit on in person contact has changed the way lawyers interact with clients and the way parties participate in mediation.  Distance can be handled through appropriate preparation.  Overall, it appears that Zoom mediations are here to stay.”

Kathleen M. Mahan – Commercial Litigation, Cook, Little, Rosenblatt & Manson, pllc.

“Since the onset of the pandemic, I have participated in a number of virtual mediations, either as counsel or as mediator.  While I found there to be some hesitation initially, especially among less tech-savvy clients (and counsel!), that quickly dissipated as people became more familiar with the zoom platform and comfortable with appearing on camera.  In my experience, virtual mediations generally are as effective as in-person mediations, with the added benefits, such as efficiency and seeing the faces of those involved, outweighing any drawbacks to not being in the same physical space as the mediator.  Simply signing in at the allotted time rather than commuting to a sterile conference room, meaning less time and expense for clients, has been welcomed. In my view, virtual mediations have been a good addition to the practice, help facilitate timely mediations, especially for clients that are out of state, and I would continue to utilize the option in the future.”

Lexi Cote – Probate Litigation, McLane Middleton, Professional Association

 “Since the coronavirus pandemic, the majority of the mediations in which I have represented clients have been virtual.  While there is something to be said for the convenience of virtual mediations – particularly where the parties reside in different states – in my probate practice, I have seen a significantly higher degree of success at in-person mediations.  Where the majority of probate disputes are between family members, tensions tend to run high and are often compounded by the loss of a loved one.  I have found that a computer screen can, in certain instances, serve as a barrier to the reestablishment of positive familial connections that often contribute to the success of in-person mediations.  As we move through the pandemic, I expect I will continue to utilize virtual mediations in my probate practice to some degree, but will request in-person mediations where doing so would make it more likely to yield successful results.”

Sandra Cabrera – Civil Litigation, Waystack Frizzell

“I have had several mediations over zoom since the pandemic started, and every one of them was extremely successful.  Beyond the dollar-amount outcome, my clients appeared equally satisfied with the overall experience, as well.  I put the same amount of effort into my online presentations as I did for in-person presentations and would prepare a PowerPoint and other visual aids.  I practiced with the technology ahead of time and prepared my clients for what to expect to make sure they understood the process and to set their expectations.  I usually had my clients meet with me at my office for the mediation, with only the mediator and opposing counsel appearing by zoom as I found it helpful for my clients to be able to discuss the case with me, in person, during the mediation.  It also helped eliminate the unknown of whether my client had the technological skills to use zoom independently.  I will certainly use virtual mediations in the future.  Being where I live, I used to either (1) pay a mediator extra to travel up here; (2) take my time and my clients’ time to drive to a mediator in Concord; or (3) find very nice mediators who would travel without charge.”

Based on the above responses, it certainly looks like virtual mediations will remain an option for parties in addition to live mediation when we come out of this pandemic.