The pandemic has brought on many changes, including a complete reversal in the Dispute Resolution Commission’s rules on remote mediation. Prior to June 10, 2020, physical attendance at mediation was mandatory and mediations could be conducted remotely only with the consent of all parties and the mediator. Effective June 10th, the rules changed and all court-ordered mediations under a DRC program shall be conducted remotely unless the mediator, all parties, and any other persons required to attend agree to waive the requirement to conduct a remote mediation, and comply with all federal, state and local safety guidelines that have been issued, they may conduct the mediation in person. This shift — at least with respect to the rules — is unlikely to be permanent. A return to “normal” is also unlikely.
This article is about a possible paradigm change in mediation that combines the lessons learned from On-line Dispute Resolution (“ODR”) and one of my favorite pre-pandemic topics: mediation that is not limited to a one day, blind-side the mediator marathon. The limitations inherent in the traditional one day mediation are what lead me to study and champion a process known as Guided Choice Mediation. You can read more about that process elsewhere on this blog and here. Guided Choice, however, is not right for every dispute — for one thing its success requires complete buy-in to the process from all parties. But what Guided Choice suggests that is useful in every mediation is the idea that not all of the negotiations take place at the same time. Enter Asynchronous Mediation.
Like most mediators, I have been practicing ODR for several months using the Zoom platform and have found that the platform is excellent for mimicking face-to-face mediations. Read more about that here. What I have also found is that simply conducting an ODR session as a substitute for the traditional one-day mediation marathon unnecessarily limits the power of remote negotiations. While it is clear that the traditional model has some advantages for reaching resolution (e.g., the commitment and urgency of gathering everyone in the same place) it also has its limitations. For one, the focus on a single day can torpedo the negotiation if it’s the wrong day (e.g., too early for a thorough assessment of risk or too late and positions have hardened and sunk costs are high).
Guided Choice proposes that the parties engage the mediator early in a dispute and empower him or her to conduct pre-mediation caucuses. These caucuses allow the mediator to identify what information exchange (short of full scale discovery) would facilitate resolution and to identify obstacles to settlement. It also involves a mediator’s continued involvement in settlement discussions and framing methods for overcoming obstacles should the mediation impasse. One of the primary obstacles to adoption of some form of Guided Choice has been the time and cost of these extra processes. A second, but related, problem I have encountered is that the asynchronous caucuses rarely involve the client. With no disrespect to the advocates involved, much of the power of mediation and private caucuses results from the three way dynamic of party, attorney and neutral engaging in the conversation. Acceptance of — and familiarity with — virtual platforms makes it much easier to put all three in the same “room.”
Our mediation paradigm centers on a general session with counsel statements and then lengthy caucuses between the parties. I think there is good reason for this norm. It focuses the parties and counsel on preparing for the mediation. In some cases, discovery plans are made to focus on this pivotal day. It also provides significant incentives to work toward resolution at the event. To be clear, as a mediator and an advocate I do not advocate elimination of the mediation day as a focal point of settlement discussions. However, I do believe that the experience all of us are gaining with remote meetings will (and should) change the nature of the event. As those of you who I have served know, I tell advocates and parties that impasse at mediation should not be the end of settlement discussions. It may be the best opportunity for settlement but it is not the only opportunity.
The virtual platforms we are becoming more and more familiar with allow the mediator to conduct virtual private caucuses before and after the mediation event. In my ODR practice guidelines, I require the parties and counsel to meet with me virtually before the mediation. This is in large part to ensure that there are no technological obstacles but also provides the opportunity to discuss non-obvious obstacles to resolution. I cannot count the number of mediations that involve one or the other party expressing surprise at something they heard for the first time in general session. Something like the amount of a demand or a key fact that should have been shared, and perhaps negotiated, long before the mediation day event. Effective engagement of asynchronous virtual caucuses should better prepare all parties for more fruitful mediation discussions.
Whether or not ODR becomes the norm or even a reasonable alternative to face-to-face mediations remains to be seen. What is clear is that private caucuses through ODR platforms either before, after, or in lieu of a traditional synchronous negotiation will be part of effective mediation conferences even after we return to “normal.”