Delving Inside the Silver Lining for Dispute Resolution Alternatives

Issue November/December 2021 November 2021 By Michael Zeytoonian
Dispute Resolution Section Review
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Michael Zeytoonian

As we step out from the shadows imposed upon us by the COVID pandemic, it’s an understatement to say that COVID changed everything. Its effects were horrible and devastating on many levels, from death and serious illness to lost opportunities in many aspects of our lives, and for people of all ages and backgrounds. We’ve shared in the sadness, pain, suffering, sorrows and losses of thousands.

But the silver lining is that the pandemic has forced us to recalibrate many aspects of our lives. It has opened a think tank environment within which to take a hard look at the way we did things before and how we want to live going forward. Rather than quickly reverting to “life before COVID,” it would be good to think things over carefully first before just making a knee-jerk return to status quo ante.

This pandemic has given us profound messages and wake-up calls, and a golden opportunity to adjust, fix or reshape how we do things going forward. Call it a correction, do-over, divine intervention or turning of the soil. In each of those lies a chance for a “new normal” that is better than normal: extraordinary. President John F. Kennedy once noted that the Chinese word for crisis was composed of the symbols of danger and opportunity. We’ve seen the danger; it’s time to let the opportunities percolate. 

I am fortunate to serve an organization with a mission of eradicating various kinds of discrimination. I work as a problem solver and resolve disputes that arise out of the workplace, housing issues or places of public accommodation. In all three settings, this pandemic has given the parties in disputes, their lawyers and me a clear opportunity: “Rethink things.”

Perhaps the most profound reset is in the workplace, and with that, how we interrelate with each other. As we emerge from COVID, people are being called to physically come back to the workplaces. But working remotely has already shown us that companies and employees can be equally productive — perhaps more so — working from home as they were in their offices. Remote working allows people to better manage their work-life balance and shape approaches that can reduce stress and allow them to enjoy quality time with families and friends. Through this transition, many service-oriented companies haven’t lost a beat, and have begun to see the savings in reduced brick and mortar costs, improved morale and decreased stress in their employees. Employees and employers who have a shared interest in avoiding the expenses and time of travel, lodging and parking, and increasing productivity, have both reaped benefits.

As we return, we have a chance to consider what would be the most productive way forward. Most of us in the services sector will never go back to being in the office five days a week. That cow has left the barn. The creative challenge we are called to figure out is what hybrid arrangements are best for all involved.

In my field of law and subfield of dispute resolution (DR), we are looking at hybrid models as well. Those that dispute resolution serves — the public good, the parties to disputes, the lawyers who represent them, the courts, administrative agencies and DR professionals — are all working at what will work best and satisfy most interests. There has been overwhelming support for continuing to do mediations and conciliations remotely using effective video tools like Zoom. The advantages expressed have been largely pragmatic: saving time; avoiding costs of travel, lodging, meals and parking, and lost man hours that come with that; and reducing stress. One challenge is to transition without losing the quality, efficiency and personal touch of face-to-face meetings and negotiating in the same physical space.

Beyond these benefits, there are also other opportunities here that we don’t want to overlook. How can we use these technological tools and vehicles to improve on what we have been doing? What opportunities and creative techniques are presented to us by working remotely with full sound and video access? What negative aspects are now avoided by not being physically together?

For instance, the traditional model for mediation is one session — a half day or a full day, hopefully resulting in a resolution or a settlement. Remote video sessions allow us to break the mediation down into more than one session, each addressing different aspects of the negotiation and providing ample time and opportunity for the parties (and lawyers) to fully address things that need more than one session. Different components of dispute resolution require different environments, mindsets and approaches. It is difficult if not impossible to make that shift in the same mediation session and setting. Since people don’t have to travel, park, and spend overnights away again for a second or third session, certain types of cases would benefit by breaking the mediation down into more than one session. There may be a need for an emotion-driven session offered for people to say their piece and “have their day in court.” This is the opportunity to satisfy what mediator and educator Bernard Mayer calls their “emotional due process” needs, or what “White Space” proponent Juliet Funt would refer to as a chance to “drain the well.” It’s not optimal to then expect those same people to quickly shift into a pragmatic, logical problem-solving mode and discussion. There is a need for these emotion-driven things to simmer for a while before the parties are mentally and emotionally ready for the next step.

Taking a page from the collaborative law approach and playbook, there’s great value to dedicating different sessions to each agenda item: e.g., identifying the needs and interests of the parties — and doing this together so each side can hear and acknowledge the interests of the other side and often recognize that there are shared interests. But after identifying these, time is often needed to think about how to best satisfy those interests. It’s easy for DR professionals — neutrals — to make that emotional and mental shift because we are not involved personally. But it is not easy or efficient to expect the parties and maybe even the lawyers to be able to make an immediate transition from active and empathetic listening to critical, analytical and creative thinking in the next five to 10 minutes.

A remote, video-based model can serve these needs to schedule the mediation over more than one session and spread out as needed over time, whereas parties would not be so willing to make three trips to Boston to hold the mediation in person and pay their lawyers for the same three trips and travel time and expenses. The one-day, one-shot session puts pragmatism and cost, not to mention some old-school thinking, above efficiency and quality. 

In sexual harassment cases and some discrimination cases, the person bringing the claim does not usually want to be in the same physical place as the alleged perpetrator. In family disputes, parties may be able to process and assess better from the comfort and security of their own homes than in a mediation conference room. 

In cases involving insurance coverage, some parties like to have their insurance adjusters — who are often out of state — “sitting in” on the virtual mediation, something far more likely to be possible in shorter and/or remotely held mediations than the one-day in-person model. Adjusters also have the benefits of seeing the parties and being able to come in and out of the mediation as needed rather than being on the other end of telephone calls when the insured party calls to get authority to increase a counteroffer.                      

What about physical space? In the offices of busy law firms and alternative dispute resolution providers, and even in the courts, there are often many functions that require the use of conference rooms. A mediation will require the use of at least two and sometimes three conference rooms. Conference rooms are often also needed for a variety of reasons: staff meetings, public hearings, motion hearings, presentations, client meetings, and various types of conferences. Using technology such as Zoom for mediations done remotely alleviates the demand for conference rooms and other space.  

Similar thought processes are going on with every employer, focused on making creative, thoughtful and productive adjustments that benefit not only the companies, but the employees that work with them and the clients or customers being served.

COVID offers a silver lining of new opportunities, if we are wise enough, agile enough and courageous enough to make the transformations, some that were already needed long before the health crisis arose. Beyond the logistical adjustment, we are given the chance to rethink how we can reform our respective professions, how we will work and live our lives in a more extraordinary, centered way, and how to shape a more organic relationship between the two. 

Michael Zeytoonian is a lawyer and alternative dispute resolution professional focusing on workplace and discrimination disputes.