As we enter the third year of the pandemic, many courtrooms continue to keep their doors closed due to health and safety concerns, resulting in the need for continued mediations amidst growing backlogs. COVID-19 has had a tremendous impact on pre-trial and pre-mediation procedures, most significantly, a seismic growth in the adoption of technology and a shift to digital mediation via virtual platforms.
Until recently, online mediation was often discounted based on the widely held belief that discourse via video conference was not as effective as face-to-face discussions. New technology imposes new challenges and layers of complexity for mediation engagements, such as briefing and questioning witnesses, gathering appropriate information, statements, and evidence, and clearly understanding the plaintiff’s position. Several of these aspects are undoubtedly enriched by interacting face-to-face. Additional insights gleaned from body language, voice inflection, and overall demeanor can prove invaluable while preparing for mediation, but these benefits are largely lost in a virtual-only world.
While these concerns may be valid in some respects, the current environment has shown that online mediation can be as effective as in-person methods. Like many other aspects of our lives today, leveraging the right tactics in advance can help improve the success of virtual mediations.
Properly Prepare
When it comes to engaging with witnesses, it is vital to take the time to prepare and build solid rapport ahead of the mediation. This preparation should begin the moment a claim is received. While time consuming, reviewing deposition questions with witnesses again and again (and again) is the best way to ensure that all of the details are ironed out. This approach will help to avoid surprises during the mediation process.
Since most civil cases never see a trial and end through some type of negotiated agreement, preparing for mediation should be just as important as preparing for a trial. To increase the chances of reaching a negotiated agreement, it is important to have a strategy in place for approaching the claim from the very beginning. This strategy should include establishing a theme and connecting your evidence, determining your rationale for the proposed settlement value, and knowing the issues that you would like the mediator to consider.
Be Meticulous About Mediators
The selection of a mediator is another factor that can play a decisive role in the outcome of your case, especially when it is managed virtually. Making a rushed decision could result in confusion, frustration, and, ultimately, increased costs for litigation.
Select a mediator with whom you have previously had a positive working relationship, or at the very least, one who knows you as a professional. A stable foundation establishes expectations prior to mediation and can help you plan accordingly. If it is not possible to leverage previous relationships, you can utilize the fact that virtual mediation has broadened the mediator marketplace, thereby allowing you to retain a mediator with a more diverse background. A mediator with a background that reflects the issues involved in the case may assist you in building trust through a cultural commonality.
Additionally, virtual mediation can increase efficiency because the mediator and counsel do not need to spend time traveling. This efficiency also lends itself to ongoing discussions post-mediation, which increases the number of matters that can be resolved.
Therefore, when selecting a mediator in a virtual setting, it is important to ascertain the mediator’s willingness to make a “mediator’s proposal,” if the parties do not come to resolution, and allow for a double-blind proposal. The latter is a tool that allows the mediator to make a settlement proposal, ask each side to consider the proposed terms on an all-things-considered basis, and simply respond “yes” or “no” with the assurance that “yes” answers will be kept confidential. If both sides say, “yes,” then the matter is resolved on the proposed terms.
Since the definition of a mediation places parties on opposite sides, one way to reduce friction could be to agree to a reasonable mediator suggested by your opponent. A mediator, even if proposed by the opposite side, is tasked with remaining neutral. Assuming you have a strong case, the mediator should be able to facilitate a positive resolution.
When in Doubt, Overcommunicate
Online mediation has proven to be an effective tool for settling claims. Even before the pandemic, some people utilized teleconference and video conference tools when coast-to-coast travel, weather, and witness availability presented challenges. However, barriers to effective communication may need to be overcome leading up to and during the process. The virtual environment lends itself to distractions, including technology issues and a lack of familiarity among participants that could cause this strategy to go sideways quickly.
In many common personal-injury claims, such as automobile collisions, slip and falls, general liability, or workers’ compensation matters, the focus of mediation is often on the parties agreeing to an acceptable settlement. That is not to say that discussions are simplistic or that there are no other issues that need to be addressed. However, those discussions are often secondary to the parties’ ultimate financial stance and are typically less contentious.
Accordingly, these claims are typically two- or three-party disputes, and the online environment allows for streamlined discussions that make online mediation relatively simple to navigate. Proper security protocols, passwords, the ability to create rooms and other measures to ensure confidentiality have increased the willingness of parties to participate in online mediation. In fact, reports indicate that settlement rates have remained consistent throughout the pandemic, despite mediation moving almost exclusively online.
Developing a plan and then following it is critical for successful negotiations in any environment. Clear and consistent communications with your risk manager, carrier team, and defense attorney are essential to ensure that things run smoothly during mediation.