As the pandemic hit the country with full force last spring, there was a lot of discussion among dispute resolution (DR) professionals and members of the bar about the pros and cons of remote arbitration and mediation as a necessary option with the reality of the courts being closed for some indefinite period. Some lawyer commentators expressed concerns about the lack of personal contact, inability to assess witness credibility/body language and the loss of opportunities for informal or casual interactions between attorneys and the mediator, and even between the parties themselves. But mediators and arbitrators had no other choice than to roll up their sleeves and begin making necessary adjustments to their practices for this new reality. So, how have things worked out 18 months into this new routine?*
The DR community has had plenty of experience with conducting remote arbitrations and mediations since the courts essentially closed to in-person proceedings last year. Although the author is unaware of any systematic study of the results of remote DR and of the reactions of the participants — mediators, arbitrators, attorneys and parties — to this new world, he was fortunate to have had the opportunity to moderate and serve as a panelist on a number of interactive panel discussions of this topic co-hosted by the Massachusetts Bar Association’s DR Section and individual subject matter area sections during the first half of 2021. In all, there were six such panel discussions featuring mediators/arbitrators and lawyers from the Civil Litigation Section, the Real Estate Section, the Labor & Employment Section, the Civil Rights & Social Justice Section, the Family Law Section and the Complex Commercial Litigation Section. Needless to say, those panel discussions were also held remotely. What follows are my own personal observations based on these panel discussions. These views do not reflect the official views of the DR Section or of any of the other sections that participated in this series of sessions.
- On the whole, both mediators/arbitrators and lawyers thought that remote DR worked reasonably well, in some cases much better than expected, although it was not without its bumps, technological and otherwise.
- The perspective of most mediators and arbitrators was that their ability to conduct a mediation or arbitration remotely was not substantively different than conducting one in person, with some notable and surprising exceptions, discussed below, and that the process had some distinct advantages.
- One DR professional thought that mediations were shorter because of the competing demands from being at home rather than in a neutral setting where the pressure was to stay longer. Other DR professionals commented on these other advantages of remote DR:
- avoiding travel costs
- avoiding the delays of travel, even travel within the Boston metropolitan area, with its horrific traffic
- ease of scheduling the sessions
- ability to have all key decision-makers involved directly in the mediation when inability to travel is not an excuse
- ability to achieve some “personal touch” by shuttling participants in and out of private breakout rooms in ways that are easier than when parties are stuck in their individual rooms in an in-person mediation
- ability to establish rapport prior to the opening session of a mediation or arbitration by “meeting” in advance with the parties and their counsel to plan the session. This is different than in-person arbitrations where the parties, their counsel and the arbitrator may not actually meet until the day of the arbitration.
- in a complex business case, particularly an international case, there is the opportunity to involve more parties where travel is not a factor and the cost savings from not traveling can be used to spend more time on the mediation.
- Many mediators found that they were able to communicate adequately with the parties and clients and probably obtained a better “read” because, unlike in an in-person mediation during the pandemic, no one was wearing masks.
- Some of the disadvantages of remote DR according to mediators/arbitrators: the client or lawyer is always on screen, and if you grimace or grin, the neutral and other parties will see your expression. And even if clients are warned not to record the session or have someone in the background assisting them, the DR professional may not detect if this is happening.
- Specifically with respect to arbitration, an arbitrator commented on these concerns:
- difficulty of managing exhibits
- harder to assess the credibility of witnesses
- distracted parties and witnesses who may be multitasking
- with an international case, difficulty of dealing with different time zones
- Lawyer panelists had mixed feelings about remote mediation. Some commented that mediations were far easier remotely than in person. However, many lawyers missed the opportunities for informal contacts and subtle communications with the mediator and other lawyers in in-person sessions that occur on the way to the restroom or to get a snack. Others observed that participants were more likely to take a more rigid position when they were not face to face with the other side. One lawyer observed that it appeared to take longer for parties in a remote mediation to “get started,” perhaps because they didn’t feel they had as much “skin in the game,” not having had to travel to the mediation and being able to participate from home. Another lawyer commented that remote mediation allowed the participants to hide behind the screen and that it was harder to be persuasive than in person and harder to establish rapport with the other parties and lawyers.
- Other concerns expressed by the lawyers are the extra time needed to prep their clients, including advising on where they should set up at home to avoid unnecessary distractions — from spouses and kids, to pets, to inappropriate pictures on the wall — checking the adequacy of lighting, ensuring the reliability of technology and having practice sessions with the clients on how to see and be seen on camera. Also, lawyers needed to make a plan with their clients of how to communicate privately during the session — by cellphone, text, taking a break to talk, etc. All of these new demands added time and worry to the normal process of preparing clients.
- Lawyers also commented on how much more burdensome it was to handle exhibits remotely, in terms of the need to have them delivered to multiple parties further in advance of the proceeding than usual and the need for careful planning and organization when parties and counsel were not all in the same place.
- Finally, both arbitrators/mediators and lawyers commented that it is necessary to adjust our expectations to realize that electronic screwups go with the territory of remote proceedings and likely cannot be avoided, to the terror of all of us perfectionists.
In general, the mediators/arbitrators and lawyers gave a qualified thumbs-up to remote proceedings, although it is fair to say that most would prefer to return to in-person sessions. However, so long as the pandemic and its variants persist, and there are severe restrictions on travel and on meeting indoors without participants being vaccinated and masked, remote mediation and arbitration are likely to be the norm. And as clients and insurance adjusters get used to avoiding the hassles of travel, they may demand remote mediation and arbitration even when the pandemic ends. It is possible that future DR proceedings in the wake of the pandemic might be conducted on a hybrid basis, although it will take some time before DR professionals are comfortable in resuming in-person sessions, for personal and liability reasons.
*I wish to acknowledge especially the efforts of my fellow DR Section and DR Council colleague, attorney/mediator Maureen Reilly, who shouldered an equal load in organizing and moderating these MBA sessions. I also wish to acknowledge the hard work and valuable contributions of the mediators, arbitrators, lawyers, and current and retired judges who served on the panels. Last, but not least, thank you to Serena Dassatti and the other MBA staff who so seamlessly transitioned to holding CLEs by Zoom and who so ably assisted us in advertising, organizing and running these sessions without a technological glitch, including holding our feet to the fire when it was warranted, which was often.Kenneth A. Reich is an environmental and energy lawyer/civil litigator and a mediator and arbitrator. He is an appointed member of the Dispute Resolution Section Council of the Massachusetts Bar Association. He taught seminars in dispute resolution and environmental law at Boston University School of Law for a number of years.