The coronavirus has dramatically impacted our lives in every conceivable way – personally, medically, socially, financially, politically and legally. It is causing us to reconsider how we do everything. I write only as to a small part of the legal picture – the need for video conferencing as a replacement for in person mediations. There is a concern that video conferencing will not be as effective as meeting face-to-face with the neutral or even the opposing party. It is my experience that that concern is valid, to an extent, but the benefits of video conferencing outweigh any negatives. Besides, there is no alternative to the process.
Mediating in person is the ideal: we believe we are more effective when sitting near another, certainly when sitting next to a person, as opposed to sitting across the table – our voices, facial mannerisms and body language are more impactful. But having mediated by video conferencing, I can assure that parties and neutrals can still effectively make their points on a screen. Interestingly, the novelty of talking to an attorney or client by video is not a distraction; they look at me as intently as if I were in the same room. Moreover, the more we use video conferencing, the more comfortable everyone will be with the process.
Arbitrations may present additional issues because witness examination and the use of exhibits are additional complications but these problems can be worked out, as well, with more planning during telephonic status conferences, which will become more important.
The technical part of video conferencing is simple: the attorney receives an invitation with a link and a password for the scheduled date and time. After that, the neutral arranges the breakout rooms, much like an in person mediation. For example, a room may include the attorney on a laptop and the client on another electronic device at another location. The host neutral controls who can see and hear the communications; it is very secure.
So, let’s look at the positives of video conferencing: The parties do not have to travel to the mediation; they can work at home. There’s no more dealing with Southern California traffic. This saves time and money (such as fewer billable hours) and reduces aggravation. Attorneys (and even clients) can use the “dead time” more effectively when the neutral is meeting with the opposing party since they have access to all of their files and memoranda. Clients need not be physically present with their attorneys as they can participate from separate locations. Likewise, adjusters can now be present by video and not just telephonically. STAY-AT-HOME ORDER
Video conferencing didn’t happen to us voluntarily but, as I’ve mentioned, there are advantages. Besides, it could very well be the future once this terrible virus is no longer a problem. Be well! We are in this together.
Judge Michael D. Marcus (Ret.)
ADR Services, Inc.
1900 Avenue of the Stars, Suite 250
Los Angeles, California 90067