Pennsylvania Bar Association - Takeaways From a Mediation With A Mediator Who Did Not Adapt to Remote Proceedings
With 40 years of experience as a litigator and over 25 years as a neutral, I value mediation as an effective tool for resolving disputes whether I am the advocate or the mediator in a particular situation. To appreciate how to mediate effectively when the participants are unable to meet face to face, it helps to consider why parties resort to mediation rather than relying on trying to settle without a neutral facilitator. Among other things, mediation allows the parties and their counsel to hear assessments of their position and contrary perspectives from a third party experienced in evaluating cases. Another reason that lawyers invoke mediation is because they are concerned that opposing counsel may not be conveying their client’s position to the adverse client; they want to be sure their message is getting across to the party unfiltered. When lawyers refrain from giving clients difficult news or don’t feel their clients are fully absorbing that news, they may rely on mediators to communicate risks that the lawyer hasn’t fully shared or the client hasn’t fully accepted. Lawyers may also view mediation as an opportunity to assess credibility of adverse parties and effectiveness of opposing counsel. Stakeholders need to consider these incentives when assessing how to accomplish their goals when mediating remotely.
Parties considering virtual mediation should also consider what it takes to reach an amicable resolution. The mediator needs to develop rapport with the clients to overcome intransigence and stimulate compromise. There is also a sense of mounting pressure when in-person mediation keeps participants captive while the process unfolds. Most of us have spent many long days and nights locked in conference rooms; it usually is painful and frustrating, but generally, most matters resolve after long hard work. The pandemic necessitated finding new ways to establish the intimacy and urgency of live facilitated negotiations when the participants are remote. Some mediators do a stellar job in adapting, but that is not always the case.
Unfortunately, in one case we handled at Griesing Law, the mediator took a lazy approach, which undermined the process unduly extending the dispute. The mediator failed the parties in several ways. First, they did not assess conflicts fully and did not disclose a potential conflict until the morning of the mediation when the parties were ready to go. Second, when the opposing party reneged on the agreement to exchange information in advance to facilitate dialogue, the mediator sided with the reneging party belittling the client’s insistence on compliance. That created a lack of trust that was difficult to overcome. Further, the mediator only wanted to speak to the lawyers, rather than the clients who would ultimately be making decisions on a potential settlement. The mediator insisted on communicating by telephone, rather than online where the participants could see him and see each other. Finally, the mediator did not maintain control over the process and the opposing party “disappeared” when the parties were on the cusp of a resolution. The suddenly absentee party supposedly left early to go on a weekend jaunt midday when the mediation had been scheduled for a full day. Each of these mediator missteps led us and our client to lose confidence in the mediator, prolonging for weeks a resolution that potentially could have been achieved in a day or two. As a result of the mediator’s deficiencies, the parties incurred additional costs and legal fees that likely would have been avoided.
Here are some ways in which a mediator proceeding virtually can be more effective. Counsel can take the lead by questioning the mediator upfront about the procedures or by entering an agreement among the parties as to the ground rules. Before accepting the engagement, the mediator needs to assure they have all the information to conduct a thorough conflict check and to disclose all real or potential conflicts to avoid a perception of bias. When making this assessment, the mediator should look beyond the parties at the principals, witnesses, and experts likely to be involved if the matter proceeds to trial. Looking 7165191.1 merely at the entities involved in a business dispute, especially when it involves two privately held businesses, can lead to embarrassing revelations of conflicts during the mediation. Although most mediation is non-binding, participants want to feel the neutral is indeed impartial and not tainted by affiliation with someone with an adverse interest.
Also essential, is establishing protocols on how the process will unfold. Specifically, the parties should agree upon, or the mediator should specify clear written instructions on who will participate, what information will be exchanged in advance, what information will be provided only to the mediator, what technology will be used for the parties to communicate, and the time at which the parties will adjourn absent the mediator calling a halt due to impenetrable impasse. For parties to be sufficiently invested in the process, they need to see and hear the mediator. It is much more difficult for the mediator to develop credibility if they are not speaking directly to clients because their input is filtered through counsel. It will have much less impact. Also, it is difficult to develop rapport, and thus have influence, if the mediator does not speak directly to and make eye contact with the parties or observe their body language. Without direct communication and observation, the mediator is limited in assessing the basis for resistance. The mediator is relying on intermediaries who are advocates; they are not required to share an objective assessment with clients or with the neutral, but failing to do so interferes with a key element of mediation.
The parties are also more likely to be invested in the process if they are in the same place and the mediator moves back and forth between neighboring conference rooms. There is something about being captive that helps overcome entrenched positions and propels compromise. If the stakeholders instead are comfortably at home some of the pressure inherent in mediation is lost. One way to accommodate for that loss is through agreed or court-mandated “presence” online for a specified period or until the mediator releases everyone because there is an impasse. When a party feels they can leave without sanction there is less incentive to invest in the process. This is particularly disappointing to a committed party, particularly where there has been momentum. Leaving for a weekend break in the midst of mediation is less likely if everyone is participating visibly online rather than merely by telephone with counsel. This setback can prolong litigation at a substantial expense or lead to a frustrated party insisting on going to trial to avoid further thwarted negotiations.
In virtual mediation, where the participants are physically separate, it behooves the mediator to set the expectations so that stakeholders are fully present and invested in the process. The mediator is paid to do the heavy lifting, not to take a lazy approach. But even in the absence of mediator vigor, counsel can proactively set the stage by agreeing on protocols upfront to increase the potential effectiveness of the process. They can accomplish this by entering a written agreement on the key aspects of the proceeding rather than leaving it to chance or the mediator's whim.