By Hon. Thomas A. Stander
As the pandemic continues to challenge and change the way we work across all industries, many of us are growing increasingly impatient with the wait for “normal.” Will we ever get back to normal in the court system? What will normal even look like when we get there? In fact, is normal something we should go back to, or should we simply be looking forward for the answer? There are a few realities to consider when it comes to the future of mediation.
The first reality is that the court system is currently a long way from normal. In talking to my friends and former colleagues on the bench, it is going to be many months before civil jury trials are moving surely and swiftly through the court system.
The second reality is that when normal comes, ADR will be as valuable as ever. Mediations thrived during the pandemic. Litigators realized early on that any chance of promptly resolving their clients’ disputes had to be done through ADR. Where the court system couldn’t move forward due to quarantine restrictions, virtual platforms made ADR not only possible, but successful.
Regardless of what our return to normal looks like, the benefits of mediation stand strong: early resolution of the parties’ differences, reduced costs to the litigants, resolutions crafted by you and not dictated by the court, and the certainty of resolution.
But as much as mediations may be a foregone conclusion in any return to normal, HOW they are conducted has yet to be decided. Will we revert to in-person sessions, or will virtual mediations continue to be the format of choice? Consider the following as you ponder the way forward:
Ease of scheduling: By their very nature, virtual mediations eliminate the time and costs associated with travel and add the ease of working from your own home or office. Therefore, they are much easier to schedule or extend to another day if needed. On the other hand, my experience is that for all the above reasons, virtual mediations are also much easier to cancel.
Commitment to the process: A side effect of being easy and inexpensive to schedule is that some attorneys agree to virtual mediation without a genuine commitment to the process. Since in-person mediations require a commitment to travel, and set aside a day or more for the mediation, the parties are often more committed to a true attempt to settle the litigation.
Controlled confrontation: Let’s face it, in-person mediations can get pretty uncomfortable, especially when the dispute involves a close personal relationship, such as family or business partners. Being face to face can exacerbate the parties’ antagonism for one another. Score one for virtual mediations, where by virtue of the format alone, that animosity is diluted. Attorneys generally have greater control over virtual mediations, and there is seldom true client participation and, therefore, direct client conflict.
Adjuster availability: Going back to normal would have us reverting to the insurance adjuster requesting to be “available by phone” to avoid travel costs. Virtual mediations now allow adjusters to be an active part of the proceedings. This creates a new opportunity for mediators to require virtual participation from adjusters for in-person mediations. This allows the adjuster to hear and see the discussions, while enabling the mediator to speak directly to the person holding the purse strings.
Visibility of the tea leaves: If you’ve appeared before me in a court settlement conference or mediation you’ve heard me say (perhaps too many times), “I read tea leaves for a living.” What I mean by that is I carefully read the body language and listen to what is said, and what is not said, to try to determine where the parties might find common ground. I also look at the interaction between the client and the attorney to try determining who is leading the negotiations and, with multiple plaintiffs or defendants, try to determine who among them is the “key negotiator.” This is by far the biggest advantage for in-person mediations. That said, in-person mediations, where masks are required, make reading the tea leaves much harder than even virtual mediations.
After considering these factors, you may still be asking one question: which format delivers the most favorable outcome? The answer is, they both do. I have not found a great discrepancy in the success rate of virtual mediations versus those done in-person. If the parties come in good faith to resolve litigation, then there are very few disputes that go unresolved.
So while I’m as impatient as anyone to get back to normal in the court system, perhaps we should stop thinking of it as “getting back” and consider that we can “get better” with a new normal. We now have a mediation option that wasn’t available or widely accepted before the pandemic, and as we’ve discussed, it has some clear benefits vs. in-person. Why can’t the way forward include both options? The method you choose will depend on the value of the case, the type of case, the location of the parties, and the ease or difficulties in scheduling. That’s how we embrace and find success in the “new normal.”
The Hon. Thomas A. Stander is a retired New York State Supreme Court Justice. As senior counsel at Adams Leclair LLP, Judge Stander specializes in the mediation of cases involving civil litigation, including matters of complex commercial litigation, personal injury and medical malpractice. Judge Stander has 28 years of civil litigation experience and is on the Federal and New York State list of qualified mediators.