Online Mediation Is Here To Stay!

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“An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum

Summer Recap  

Joel and I decided to get out of our comfort zone last January before the pandemic and reserved an RV for the first week of July. We had never driven an RV or vacationed in one and had been talking about trying the RV life for a while.  Never did we imagine back in January that we had actually planned the perfect pandemic vacation. We brought all of our own bedding, kitchen items, food, and a grill, and we picked out our two sites last February. We chose three nights at an RV park located right on the beach in Cape Hatteras National Seashore, North Carolina and another three nights at an RV Park in Wilmington, North Carolina -- a seaside city we had always wanted to visit. For seven days, we were able to relax, be outside, socially distance, and not worry so much about Covid-19. Our first  RV site was located right on Pamlico Sound and the sunsets were spectacular. Above are photos we took from our RV site. I actually can’t wait to do another RV adventure sometime soon.
 
Looking Ahead to Fall

August has arrived! The young adults and teenagers in our family are getting ready to go back to graduate school, college, and high school. We are not sure exactly what to expect. What we do know is that most, but not all, graduate school and college classes will be online while public high school students here in Arlington, Virginia will begin the school year solely online. Also, our kids will be coming home before Thanksgiving and staying home until they go back to school in mid to late January.
 
I am preparing to teach a seventh semester at George Mason University’s Antonin Scalia Law School. I was asked if my preference was to teach in the classroom or online. While I really enjoy teaching in the classroom, I felt more comfortable choosing the online option. I start teaching again on August 26th.
 
For the first time, my law students will not be able to observe live mediations in the Small Claims Division of  D.C. Courts at Multi-Door Dispute Resolution as part of the experiential Alternative Dispute Resolution (ADR) class that I teach each fall. D.C. Courts has shifted toward online mediations, and the online mediation program is still so new that Court staff did not want students observing at this time. The ADR class focuses on four units -- negotiation, mediation, arbitration, and collaborative law.  Students learn about these alternatives to litigation by practicing dispute resolution skills and then using these skills in various role play exercises. So instead of observing real mediations, students will observe recorded mediations that I am asking the law school to purchase from the Harvard Program on Negotiation. And their role plays will take place via Zoom rather than in the classroom.
 
I am also receiving a lot of calls lately from Little Falls Mediation clients who are inquiring about mediation services. I pivoted to online mediation in mid-March when all of the schools shut down. Typically, I schedule a no charge confidential phone consult with each party to a dispute so that they can ask all the questions that they have about what the mediation process looks like, what alternative dispute resolution is, how I work with clients, what is the timeline, and what costs will be. Since the pandemic began, I have mediated all of my cases online via Zoom. I learned early on that it was important to upgrade my internet capability and speed, as well as  my computer, and to make sure that all of us could see and hear each other really well on separate devices during online mediation.
 
In talking to potential new clients, I realized that much of what I teach to my law students I can impart to my clients. Most of my clients have not been part of a mediation before, and they feel overwhelmed regarding how to resolve a dispute. They do not know what ADR is, so I take time during the no charge consult to explain the differences between litigation, negotiation, mediation, arbitration, and collaborative law. I  also talk to my clients about the differences in settling a dispute in court (litigation) versus settling a dispute outside of court (alternative dispute resolution). 
 
Here is a summary of what I tell new clients about Litigation and ADR:

Litigation

• Parties hire litigation attorneys
• Interim issues are decided in court
• Trial dates are set
• Formal discovery/expert witnesses/deadlines and cutoffs
• Rules of evidence apply
• Adversarial process
• Public (unless in Juvenile Court)
• Parties have no control over the process/outcome
• Judge makes decision/enters order
• Less detail than a negotiated settlement
• Appealable
• High psychological cost
• Can take months/years
• Use of adversarial/competitive negotiation tactics include: (1) use of threats and ultimatums, (2) apply time pressure, (3) flinch at proposals, (4) ask for more than you expect to get, and (5) provide distorted facts that are beneficial to competitor
• $$$$-$$$$$

 
Mediation

• Confidential and voluntary
• A neutral mediator facilitates communication
• Use of interest-based negotiation (Fisher and Ury) includes: (1) separate the people from the problem, (2) focus on interests, not positions, (3) invent options for mutual gain,  (4) insist on objective criteria, and know your BATNA (Best Alternative to a Negotiated Agreement)
• The parties are empowered throughout the process to control the outcome
• Each party identifies the issues, brainstorms solutions to each issue, and evaluates each solution
• Assemble team of advisors to help as needed, such as a financial neutral/analyst, therapist, real estate appraiser, accountant, lawyer, health insurance broker
• Joint decisions are reached on each issue
• The mediator drafts an agreement based on these joint decisions
• Each party has a right to consult with an attorney throughout the process and to review the agreement
• Once signed, the agreement is binding
• Emotions are acknowledged and validated
• $-$$

 
Arbitration

• Arbitrator is an expert in a field/industry
• Parties choose an arbitrator
• Traditional courtroom rules of evidence do not apply
• Determine the rules of the arbitration
• Arbitrator makes a final binding decision
• After each party presents his/her case, arbitrator writes opinion/award
• No appeal right, even when the arbitrator makes a mistake (custody exception)
• Parties have no control over process/outcome
• $$-$$$

 
Collaborative Law

• Each party hires an attorney trained in collaborative practice
• Attorney advice is transparent
• Attorneys and clients meet all together
• Parties agree to no litigation
• Attorneys are disqualified from future litigation in this case
• Possible team with other collaborative professionals (mental health professional/financial neutral)
• Full disclosure
• Clients decide outcomes
• $$$-$$$$

 
Many of us are conflict averse -- and so we tend to avoid conflict. We find communication to be difficult. I find that, in the end, most of my clients really like resolving their disputes through face to face communication using interest-based negotiation in mediation sessions and outside of mediation rather than by using adversarial methods to resolve their differences. Practice of  communication and negotiation skills in mediation sessions (and in classroom role plays) does not make perfect, as the expression goes, but practice certainly makes things easier and  helps all of us to feel more comfortable in communicating with each other.  

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