She notes the virtual platform has also led to some participants being more distracted during mediation sessions . “ Mediation participants are connecting to Zoom in their car , where the signal may not be the best , or when they are driving , which is not safe ,” Elsberry notes .
Klein agrees , noting some clients have not taken the virtual session as seriously as an in-person session . “ Once a couple of clients enjoyed a late afternoon glass of wine during their mediation . That would never happen during an in-person mediation session .”
The Benefits
“ Clients have seemed to take the video format in stride ,” Klein notes . “ I have conducted a number of mediations involving highly emotional situations , and it has been surprisingly easy to build rapport with clients by video . I have detected no compromise in trust-building or in the openness of the clients as a result of using a video platform .”
Elsberry says she has also had positive feedback from mediation participants . “ They have found it is just as productive as inperson mediation ,” she notes .
It also saves clients , as well as lawyers and mediators , time and money , Elsberry notes . “ I mediate for the South Central Judicial District , but that doesn ’ t mean everyone is in Bismarck ,” she says , adding clients and lawyers may be located in rural communities and would usually have to travel . “ With virtual mediation , they can just pop on from home and it is a big time saver for participants and their attorneys .”
Through a virtual platform , clients also don ’ t have to pay mediators to travel and lawyers can also stop billable time when the mediator meets with the other party during a session . “ During the inevitable down time that occurs while I am meeting with one party , the other attorney and client representative can work on another project or do something relaxing , rather than just sitting in a conference room together ,” adds Klein . “ They are more comfortable and more productive working in their own space , and not experiencing the down time that occurs during mediation .”
Klein says the response to virtual mediation has been overwhelmingly positive . “ A few attorneys have expressed surprise at how well the video platform works , yet they still indicate they look forward to meeting in person again one day .”
The Future
“ I think this will continue in somewhat of a hybrid model ,” says Elsberry of the future of virtual mediation . “ I think we will go back to in-person mediation sessions but continue to do virtual when it can save time and money .”
In the meantime , she says she continues to offer virtual mediation in both her private practice as well as through her work through the Family Mediation Program .
Klein says she has conducted a few inperson mediation sessions in the past year , but even those have changed with pandemic safety protocols in place . “ Since March 2020 , I have handled about five in-person mediations , all taking place in large conference rooms and everyone wearing masks ,” notes Klein . “ The masks really impact the ‘ face-to-face ’ interaction . It actually seems easier to relate to someone by video than in person with a mask on .”
She says she hopes to continue to offer virtual mediation even once the pandemic is over . “ I often hear attorneys say they
think video mediations , along with video depositions , are here to stay . The convenience far outweighs any advantage that may be offered by traveling to meet in person .”
A factor that may also come into play in the future use of virtual mediation is the availability of insurance claims representatives to travel to in-person mediation sessions , notes Klein . Currently , insurance companies are not allowing claims representatives to travel due to the pandemic , but they are still able to participate through virtual platforms . In the future , she believes insurance companies will not return to traveling to attend mediations in person , but instead participate primarily in virtual format . “ I think we will see a hybrid model of some participants in person and others joining virtually as well ,” she says .
Klein says she has been impressed with how widely accepted virtual mediation has become and how well it has worked to serve the mediation process . “ It presents an excellent alternative going forward to in-person mediations . The convenience it offers , as well as savings in time and expense , are just too compelling to justify a return to exclusively in-person mediation ,” she says . “ With all the disadvantages the pandemic has brought us , there have been some advantages as well .”
Congratulations to
DENNIS PATHROFF
On becoming a Partner with Zuger Kirmis & Smith , PLLP Effective January 1 , 2021 .
Government Relations • Estate Planning • Civil Litigation
WINTER 2021 9