Van Winkle: An unintended consequence of Zoom mediations

As a consequence of two tragic murders in 1994, California voters enacted the “Three Strikes and You’re Out” law, providing life sentences for a conviction of even a minor crime, such as stealing less than a dollar in loose change from a car or breaking into a soup kitchen, if the defendant had two prior “serious or violent” crimes. As a result of the potential for life sentences for persons with such prior convictions, violent crimes by that population increased by 9 percentage points, $19 billion was added to California’s prison, budget and criminologists agreed that the law did nothing to improve public safety. These unintended consequences of the Three Strikes Law led voters in 2012 to enact Proposition 36, reforming the act and reducing recidivism rates below state and national averages and saving taxpayers an estimated billions of dollars (Stanford Law School, “Three Strikes Project”).

In the late ‘80s and early ‘90s, as a consequence of several factors — including the significant increase in civil litigation, the large number of settlements “on the courthouse steps” and the absence of an “interest-based” approach to that late and often frantic settlement process — mediation was formally inserted into the civil justice system and the number of civil disputes submitted to mediation have exploded in the ensuing 30 years. Most of these mediations were conducted pursuant to court rules requiring persons with settlement authority to attend the sessions in person.

Because of the ever-growing number of mediations, in an effort to reduce costs and (sometimes) for strategic negotiations reasons, certain of the repeat institutional participants began requesting — and were granted the right — to “attend by phone.” As a result of many decision-makers not being physically present, full implementation of the dynamics of the mediation process was degraded.

COVID-19 struck in the spring of 2020, and judges and governmental and judicial agencies suspended in-person attendance requirements for all mediation participants. Beginning in March 2020, mediations were conducted remotely, primarily via Zoom.

This suspension of the in-person attendance requirement continued for the rest of 2020 and for all of 2021 and 2022. As a result of this three-year period of no requirement for in-person attendance, remote mediations became the norm and many parties and attorneys expressed satisfaction with the process. As a consequence of this course of events, when it was decided that in-person sessions could safely resume in most or at least some cases, many more parties expressed a desire to continue virtual attendance and, for the most, there has been little meaningful pushback against this phenomenon by mediators and lawyers.

The result is that it is currently difficult to get decision-makers present in person, even in those cases in which personal attendance is often key to resolution. Although there are thoughtful and informed opinions to the contrary, it is submitted that the current reluctance of parties to attend mediation sessions in person has had and — if not reversed or moderated — will continue to have significant and long-lasting negative impacts on the efficacy of the mediation process.

Zoom mediation can ‘work’ for certain types of cases

Zoom mediations, with all or some of the participants participating remotely, can work to settle certain categories or types of disputes. Overstating for emphasis, it is submitted that Zoom is effective in settling those cases in which the parties arguably did not need mediation in the first place. For example, the Zoom process is well-suited to find overlapping but undisclosed portions of the Venn diagrams of the parties’ settlement evaluations. Mediators often learn after a couple of private caucuses that an overlap exists in the settlement goals of the parties. The relatively easy challenge for mediators in such cases is to manage the negotiation process so that the preexisting but unknown overlap can be settled upon.

Another general category of disputes for which Zoom sessions can be effective are common commercial disagreements, often over amounts that are modest relative to the size of the entities involved. Historically, such disputes were regularly resolved at a department or project level. In many cases, disagreements not resolved at that business-to-business level morphed into disputes that management or in-house legal counsel decided to mediate. Again, the mediator’s charge in many of these types of disputes is process management, with the often additional necessary element of negotiation coaching. Helping to manage expectations and assisting in what “moves” might be productive are tasks suitable for the remote Zoom format — not unlike the dynamics that used to spring up in certain small county real estate transactions in the 1960s and ‘70s in which one broker was working for both buyer and seller, or at least knew well the limits, goals and expectations of each.

Zoom mediations are not as effective as in-person sessions in many litigated matters

As described above, an unintended consequence of Zoom mediations necessitated by COVID has been a reluctance of many parties and attorneys to return to in-person attendance, even when no health and safety concerns exist. (Stating the obvious, there should be no formal or informal pressure to require in-person attendance if anyone has a health or safety concern, even if subjective.)

As indicated, there was a growing trend toward “attending by phone” before COVID, and the COVID restrictions seem to have created an almost unwritten “pass” — an additional justification for remote attendance, even after the health and safety concerns are no longer present.

The requirement of in-person attendance at mediation sessions was a fundamental and critical component of the best practice for mediation. The in-person requirement was driven by core and defining dynamics of the mediation process: at its base, a facilitative negotiation grounded not on superficial and easily stated bumper-sticker positions but rather on in-depth, nuanced, and often intense interest-based analysis. Parties on Zoom can easily state positions, but mediators cannot so easily ascertain underlying interests.

Communication is difficult in the best of circumstances and, as has been well documented, real understanding is elusive even with in-person exchanges.

Further, the reality is that mediation at its core is a facilitated negotiation that presents additional challenges for mediators and lawyers in remote sessions. General principles of negotiation such as framing, risk aversion, anchoring and the panoply of other widely accepted bargaining strategies and techniques are challenging for mediators to apply in close quarters and practically impossible to fully implement remotely.

All experienced mediation participants know well the importance of a robust and in-depth risk analysis in those cases in which there is neither a preexisting overlap of evaluations nor an “easy reach” to be made by one or both parties. Persons involved in disputes often only decide to “move” after a well-conducted and detailed risk analysis, requiring a painstaking examination of a decision tree that sometimes branches out across a white board. Such an analysis simply cannot be adequately accomplished in a Zoom session.

While it is impossible to adequately describe or identify the type and nature of cases that should be mediated in person, borrowing from Justice Potter Stewart, experienced mediators and lawyers know them when they see them. And in such cases, when in-person attendance is not only perceived as necessary but can also be conducted safely without health risks to participants, attorneys can assist in securing such in-person attendance merely by being supportive of a mediator’s suggestion that in-person attendance should be required in the particular case.

It is the policy of many experienced mediators to avoid any interaction with the court on issues of attendance and, being aware of the complexities of the attorney-client relationship, mediators will also be reluctant to require in-person attendance as a precondition of a mediation. In the circumstances pre-COVID, when in-person attendance was considered necessary but parties remained reluctant, attendance was often accomplished simply by participating counsel supporting the mediator’s preference and communicating the same to their clients. Mediators urging such in-person attendance in this (hopefully) mostly post-COVID environment could use a little of that support now.•

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John R. Van Winkle, of Van Winkle Baten Dispute Resolution, was a participant in the founding of and was the second chair of the American Bar Association’s Section of Dispute Resolution. Opinions expressed are those of the author.