by Andrew Flake
After a nearly ten-hour day on Zoom, even after concluding a great settlement, we’re sometimes less than celebratory. The process can be intense, consuming a lot of focus and energy. It leaves us pretty exhausted. And just logging off, unlike a handshake and a meal or drinks afterwards with our client team, doesn’t have the same satisfying finality.
Still, the ability to set up and conclude a mediation online, and the nearly universal availability of that option among good mediators, has been a huge positive.
Having just wrapped up one of those long mediation days, and with the benefit of two years of prevalent online dispute resolution (ODR), I thought it would be useful to look back quickly over some of those advantages, and how to make the most of them. Here are five:
- ODR gives us geographic flexibility. With ODR, parties from different parts of the country can get mediations set up more easily. I just finished a mediation with parties on both the East and West coasts, with all clients, counsel, and mediator in different locations. With some time change adjustments, it worked quite well.
- ODR gives us timing flexibility. Without the limitation of travel, and given the relative ease of scheduling and set up, it is often more feasible, earlier in a case, to mediate.
- ODR gives us mediator flexibility. The pool of great neutrals has expanded. With ODR, we have wider options for great mediators, ones with not just availability but the expertise to fit the case.
- ODR gives us economic flexibility. Generally, ODR is going to conserve resources. With parties operating remotely, if their counsel have other matters to attend to during the day, it is easier to do so, providing cost savings to the client. I recognize that this benefit is more mixed, since from a mediator’s perspective, it is a helpful to have both parties and counsel fully focused on their dispute, including discussing pertinent issues when she is in the other room. More attention means more progress.
- ODR gives us presentation flexibility. In some ways, a screen share, especially in a complex case, can be a better tool than a binder pushed across the table for helping the mediator to understand the case. Without overwhelming anyone with documents, a key piece of evidence can be retrieved and called up much more easily: a key performance standard in a contract; a graph of company revenue changes; a photograph of property or premises– all call be at the ready and pulled up, even when the need for one was unexpected.
With all of that noted, it is still true that the most important ingredients for a successful mediation — including a great mediator who knows your issues and is willing to work hard; highly prepared parties; and the right attitude coming into the process — are going to be the same in the physical room or online. And for that matter, if we can have virtual happy hours and mixers, why can’t we reserve a little post-mediation time, after an agreement is signed, to celebrate together? There’s an ODR innovation I’d like to see more of, and soon.