Being Open to All Possibilities in Mediations

Let’s put mediation aside for a moment (I promise I will get back to it) and focus on the practice of law pre-pandemic. All attorneys and staff were expected to work in the office. Exceptions included going to court and traveling for job-related purposes.

Our world was turned upside down when the pandemic required work to be done remotely. During this time, three things happened:

1. Law firm production and profitability rose.
2. Lawyers and staff didn’t have to spend time commuting and spend money on gas.
3. Working from home allowed lawyers and staff to spend more time with family.

Now we have entered a new hybrid phase of working both from home and coming to the office several days a week. This has resulted in more in-person interactions, hands-on training and the ability to maintain firm culture.

I want to share an example from my mediation practice of how a similar arrangement has worked for me successfully in a number of large cases.

One particular case involved multiple parties in a major health care business dispute. The claimant’s counsel was on the West Coast, the defendants were in several states on the East Coast and I was located in Atlanta.

Everyone agreed to proceed with a virtual mediation to save time and money. Based on geography, this made perfect sense to all. I then conducted my pre-mediation calls via an online videoconferencing platform, and everything worked well.

By the end of the day of the virtual mediation, all counsel and I acknowledged that although progress had been made, there were still a number of issues that could be resolved only by reconvening face-to-face. So we decided to meet the following week in a mutually agreed upon neutral location; eight hours later, we reach a global resolution. The result was fair and the parties were satisfied.

The case involved more than dollars. The parties had to bridge a trust gap. Were they going to continue their working relationship? Were certain offices going to be sold? Could they get beyond the emotional hurdles that could impede a future working relationship? In my opinion, we needed to meet in person to get answers.

In many ways, the in-person session looked like a typical mediation, but because we had laid the groundwork for settlement during our initial virtual session, things progressed much more quickly. The meeting included private sessions between CEOs on both sides. I was able to pull out different groups of lawyers and parties to discuss the various parts of the settlement.

This case concluded not with a win for one particular party, but with a fair resolution for all. Had counsel insisted we mediate virtually only, I am confident the parties would likely still be at war.

Just as a hybrid working arrangement is now the norm for many businesses, it can also work in mediation if counsel keep an open mind. Many think of a hybrid proceeding as one in which one or more parties appears with the mediator in person while others appear virtually. But it can also—and sometimes more effectively—involve a fully virtual session followed by one that is fully in person. Mediation doesn’t require choosing one or the other and then sticking with it for the duration.

Had we not changed direction and determined that meeting in person would yield great results, a resolution likely would not have been possible. It reminds me of Chinese philosopher Lao Tzu, who said, “If you do not change direction, you may end up where you are heading.”