ADR CORNER
ZOOM - THE BEST THING TO HAPPEN TO MEDIATION
MARK GREENBERG
Two months ago , my colleague , Maxwell Christianson , wrote an article titled , “ Zoom – The Worst Thing to Happen to Mediation .” I respectfully disagree .
Our legal system accepts change slowly , and often begrudgingly . Video conferencing technology is a perfect example . Pre-COVID-19 , I cannot think of any court that routinely allowed video conference attendance , other than criminal first appearances . Few , if any , Florida courtrooms even had the capacity for it . COVID-19 changed all of that . Our court system adapted to COVID-19 by allowing video conference hearings , usually via the Zoom platform . Now both Judges and Attorneys are big fans of Zoom hearings , to the point that few expect courts to revert to only in-person hearings after the pandemic . Attorneys have learned to conduct depositions remotely and mediations have occurred with the parties not “ physically ” present , some even thousands of miles apart . Our firm tracks our settlement rate and it is virtually identical ( within 3 percentage points ) between live and video mediations . Every mediator I have spoken to confirms the same ; that Zoom is just as effective as live , in person mediations if cameras are on . Only when people are calling in , effectively transforming video mediations into telephone mediations , do settlement rates fall .
There are some differences with video mediations , however . Zoom allows the parties to remain at home or their office , and in a more comfortable environment . This lets them focus on the case , but as Max points out , does not require them to “ invest ” in coming to the live mediation . Of course , with children at home for school and daycare limited , those with children find Zoom far more compatible to attending , rather than trying to arrange for safe child care in order to attend mediation . People are also far more comfortable at home than sitting inside a conference room with masks on for hours at a time . Max posits that in person mediations encourage the parties to stay longer , but I have found the opposite . It is far easier to pause a Zoom mediation for 30 minutes in order for a parent to pick up a child , than to have them drive an hour from live mediation to do so and then expect them to return . Further , no out of town parties
have to catch a flight , placing a hard stop on mediation .
Otherwise , the same factors influence mediation whether by Zoom or live . Is there a trial date soon forcing a hard decision ? Have the parties spent enough money that they are tired of attorney ’ s fees and wish to settle ? Are the parties willing to compromise to move forward in their personal and / or business relationship ? Would the parties prefer a certain result or an uncertain verdict ? Have the attorneys adequately prepared their clients for mediation , including what are the realistic case outcomes should they not settle ? None of these factors change when the parties are meeting by video conference as opposed to live . Indeed , sometimes having parties who do not get along physically separated can lead to a better mediation , not worse . Simply put , Zoom has allowed mediations to occur at different times , in different locations , and without the parties spending additional funds simply to attend .
With large corporations , video facilitates the actual decision maker participating in mediation , instead of a local representative who is less informed on the file . This is particularly true with surplus lines insurance companies who underwrite large risks nationwide . With video mediation , the mediator can speak directly with the actual decision maker , read their facial expressions and body language , answer their questions , develop rapport , and often facilitate a quicker and easier resolution of the case . In contrast , with live mediations attended by a local adjuster , the real decision maker enters the picture when the mediator leaves the room and the attorney picks up the telephone to call home office .
Are there times in person mediation is better ? Of course . You cannot give a hug , apology , shake hands , break bread , or share tears over video . In cases where that will be of substantial assistance , in person mediation will be superior . If there is a concern that one or more parties is unlikely to be paying attention to the mediation ( despite being on video ), then in person would be a much better choice . In the majority of cases , however , Zoom mediations have resulted in lower costs , less travel for everyone , and have the same settlement rates as live mediations . It is the best thing to happen to mediation .
Mark Greenberg is the founder of Breakthrough Mediation and Arbitration . He is a successful trial attorney with over 100 verdicts , while representing both Plaintiffs and Defendants . He has a rare combination of First-Party Insurance Coverage and Third-Party Liability experience , along with business disputes , construction defects , community association , and family law matters . Mark has successfully mediated numerous disputes saving parties over $ 20 million dollars in legal fees .
SAVE THE DATE
PBCBA ' s Business Litigation and ADR Committees present :
COVID-19 : Buiness Litigation in Crisis
Wednesday , January 27th 1:00 P . M . - 4:30 P . M . LIVE VIA ZOOM
Register by visiting PalmBeachBar . org
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