ARTICLES AND WRITE UPS

June 1, 2020|in General – June 2020 Bar Bulletin

https://www.kcba.org/For-Lawyers/Bar-Bulletin/PostId/1148/lessons-learned-about-alternativedispute-resolution-during-a-pandemic

Lessons Learned About Alternative Dispute Resolution During a Pandemic

By Judge Laura C. Inveen (Ret.)

Time has blurred as we adapt our professional and personal lives to the Covid-19 pandemic. Governor Inslee’s “Stay Home, Stay Healthy” emergency order has evolved, with a likelihood that it will be continued in some form for months to come.

Civil trials have been on hold, although case schedules have not. Litigation continues, but when needed, a decision by the trial court in a civil case may not be available. Alternative dispute resolution may be more advantageous than ever, given the limited availability of trial courts to process ongoing litigation and the inevitable uncertainty of trial dates. When civil trials resume, priority will go to criminal, dependency, and certain family law trials. Jury trials in civil cases, already rare, will meet new challenges as judicial resources are stretched thinner yet.

Most of us have adapted to the “new normal” and are operating remotely. And yes, that includes alternative dispute resolution through mediation. At first, I doubted how this could work. Mediation is so personal — it requires a good relationship between the neutral, the lawyers, and most importantly the litigants. The mediator needs to establish rapport and credibility with all participants. Can that really happen through a remote setting? I’m here to tell you that it can and does. On March 17, my colleague Judge Bruce Hilyer (ret.), was the first of us to conduct a mediation remotely. Then new to the various options through technology, he did so by setting up a computer in separate rooms at our office. Each computer was connected by video software to the lawyer and client of one side, who were physically together. Judge Hilyer shuttled between the two rooms and computers. Notwithstanding the walking exercise benefits, it was not the most efficient process in retrospect, but the matter resolved
successfully in roughly the same amount of time that would be expected at a traditional in person mediation. A week later, Governor Inslee issued his emergency order. Appearing remotely was no longer an option — it was a necessity. With few exceptions, lawyers, clients, experts and mediators were ordered to stay home. Given that mediation requires channels of confidential communication, how could this work? Very successfully, it turns out.

We have learned a lot about videoconferencing since our first one. We recognize that the mediator needed to control the technology instead of relying on one of the parties as was often the case in a simple conference call. Confidentiality is such a critical component of the mediation process that the mediator must oversee the process, including the technology. And while some lawyers and clients are technically proficient, others are not. For the process to work for everyone, it also needs to be user friendly. The service we use allows each individual participant to connect by internet to the mediation regardless of physical location. We can accommodate as many connections as the parties wish. For the best video and audio qualities, the participant will connect through a laptop or desktop with video camera, microphone, and speaker capabilities. However, a tablet, smart phone, or a landline can also be used.
Each mediation has a password controlled by the mediator. As participants join remotely, they are placed in a virtual “waiting room”, preventing the awkwardness that might result from being on-line with an opposing party. When all participants have joined the meeting, the mediator “locks” the room and convenes the mediation. If a joint session is appropriate, the mediator can bring the parties into the virtual conference room, allowing everyone to see and hear the other. Our usual practice is to bring the parties together at the beginning to introduce the process and the technology, following which the mediator will assign the parties to virtual “breakout rooms.” Each lawyer and client will have their own breakout room. This allows the mediator in the classic two (or more) party mediation to shuttle between the rooms. It also allows clients to consult privately with counsel when desired. Additional breakout rooms can be designated for other purposes, such as when counsel wish to consult with each other to draft the settlement agreement or co-defendants wish to discuss their relative positions as it relates to defense. One feature of the technology that we assure the participants will not be used is the “RECORD” function.

Another advantage to remote mediation is the low barrier to attendance. Even before COVID-19 worries, mediators frequently received requests for participation by telephone, most typically when an insurance adjuster or corporate officer was located across the country and wished to avoid travel. In some cases, the opposing party had no objection, but when there was, this presented a problem just to get the mediation scheduled. One must be mindful of court procedural requirements. See WDWA LCR 39.1(c) and KCLCR 16(b). However, when mediating remotely, it is difficult to see how virtual attendance would pose a hardship for anybody.

But is remote mediation effective? I was skeptical about the ability to develop the necessary rapport with the participants when appearing remotely. Based on our firm’s experience to date, this fear was unfounded. Video technology, even on a smart phone, has far surpassed those clunky options of past videoconferencing. With appropriate lighting and microphones, communication is as close to being in the same room as you can imagine. Based on our experience, because the technology is so simple and readily available, most cases can be effectively mediated remotely. I am happy to report that the resolution rate of our remote mediations is consistent with in-person mediations. There may still be some cases that for a variety of reasons require in person attendance. For now, those cases will have to wait. But if the alternative is spending more litigating while waiting for more court resources to become available why not give it a try?

What’s in store for the future? I expect that once physical distancing requirements are relaxed, there will be folks who wish to maintain the remote mediation option. It certainly has benefits. There is no travel time or extra cost. With a good internet connection, a participant can appear from any location, so long as it is private. It saves time and resources when you can bring in experts only as necessary. Recently I had the opportunity to conduct a mediation involving a large public works project, where technical advice from experts was useful. Video participation allowed the experts to appear remotely when their presence was needed and to go back to work when it wasn’t — all while staying in their respective offices. Many will wish to go back to in-person mediations when it is safe to do so. For a lot of us, there is nothing like in-person contact when working to obtain a resolution. And technology is not always infallible. Perhaps rare, but problems can result from device or operator failure, or poor internet connection. We have found it is useful to exchange phone numbers as a fallback to overcome technical glitches which are usually transient. Remote, or video, mediation can and does work. And remote mediation, like traditional in person mediation, takes hard work and requires us to make use of our well-honed talents. As with any mediation, it works best when the parties are motivated to make it work. Like anything unknown, once you try it you may discover, like me, that your fears are unfounded. You may even find you wish to explore it in other contexts, such as discovery master matters and arbitrations.

If you have special concerns or questions about how remote mediation might work for your case, give us a call to discuss without obligation.

Judge Inveen (Ret.) served as Presiding Judge of King County Superior Court 2017–2018. She retired from the bench in August 2019. She now serves as a neutral at Hilyer Dispute Resolution, handling matters such as mediation, arbitration, and discovery disputes. She can be reached at info@hilyeradr.com, 206-623-0068.

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