Recently, I received an email from Darren Lee, Executive Director of The National Academy of Distinguished Neutrals (NADN) with the results of a survey (NADN-2022-SurveyOfLitigators-ViewsOnODR[64656]  ) of litigators on virtual mediation. The survey compared responses received in September 2020 with those received in September 2022. Both surveys were sent to members of the DRI (defense bar) and the AAJ (plaintiffs’ bar).  Approximately 770 litigators responded to the September 2020 survey while approximately 724 litigators responded to the September 2022 survey. Some of the same questions were used in both surveys although the question on hybrid mediation appears only in the September 2022 survey.

The overall conclusion is that mediation by video conference is our future: It is here to stay!

Mr. Lee notes that prior to the pandemic and lock down in March 2020, only 2% of litigators had ever attended a mediation or an arbitration using a video conference platform. As of September 2022, about 3 out of 4 cases were using an online platform for conflict resolution.(Id. at survey at 2-3.)

Further, both in September 2020 and September 2022, approximately 70% of the responding litigators believed that they could effectively advocate for their clients using an online platform as compared to conducting the mediation in person. Those that felt their advocacy to be worse provided several reasons including that it was” … harder to read body language”,” needed to have client in same room for better control”,” missed stepping out into hallway, casual downtime contact,” and “can’t talk face-to-face with opposing client- no “grab a snack” moments.”(Id. at 4-5.)

And closely connected to this belief, approximately 75% of the respondents believed both in September 2020 and September 2022 that the mediator would be just as effective in resolving the case in an online mediation as she would be mediating in an in-person setting.  In commenting on this question, those that felt the effectiveness of the mediator to be worse, gave the following reasons: “Mediator couldn’t build a rapport with the clients as well”, “working from home, participants were less invested, easily distracted’, “found mediator  less able to get the claimant to budge on their figure”, and “procedure had less gravitas online”.  What did improve during the two years between the surveys was that the mediator became more adept as using the online platform and was no longer nervous about “…hitting the wrong button.”(Id. 6-7.)

The final questions on the survey looked to the future of online mediation.  One question asked- “Looking to 2023- how likely is it that you’ll agree to attend a mediation virtually if that’s the consensus?” The responses; 53% very likely; 32% likely; 11% unlikely; and 4% very unlikely.(Id. at 8.)

To the similar question asking “What % of your cases would you PREFER   to attend online rather than in-person?”  The responses were very positive. Nineteen percent would love 100% of their cases to be mediated online while only 14% hated the idea.  Forty-one percent stated that more than 75% of their cases should be mediated online, while 22% stated that between 50%-74% of their cases should be mediated online. Only 11% stated that 25-49% of their cases should be mediated online and finally 26% stated that less than 25% of their cases should be handled by an online mediation. (Id. at 9.)

The last question in the September 2022 survey was a new one. It asked about the litigator’s preference to attend a hybrid mediation or one in which some of the persons are attending the mediation in person while others are attending online. (From an ethics standpoint, this may raise issues of self- determination, impartiality, conflict of interest, and confidentiality.)  Interestingly, 39% did not object to this format. However, 31% would “…express a preference to mediator that everyone   attend virtually”, while 37% would “…express a preference to the mediator that everyone attend in person.” (Id. at 10-11.)

Finally, and most notably, 42% would feel that if they were attending virtually while others were in person, they would feel potentially disadvantaged while 15% felt the opposite: that as an in-person participant, they would feel disadvantaged. (Id. at 11.)

The takeaway: we have entered a brave new world. The pandemic with its lockdown beamed us into a future that otherwise would have taken us decades to reach. And the consensus is that most of us are quite happy with the results!

…. Just something to think about.


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