Online dispute resolution is here to stay. People like it. There will be those cases where people want in-person mediation, but people have realized the convenience of an online mediation, the cost-savings of an online mediation, and the fact that it works, and does resolve cases.
In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience in mediating 245 online mediations since March 11, 2020 to answer common questions related to the use of online mediation to try to settle cases. Questions answered include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
To read the full episode transcript please see the Podcast Website.
Online dispute resolution is here to stay. People like it. There will be those cases where people want in-person mediation, but people have realized the convenience of an online mediation, the cost-savings of an online mediation, and the fact that it works, and does resolve cases.
In this episode, Jean Lawler–commercial + insurance mediator and arbitrator–draws from her experience in mediating 245 online mediations since March 11, 2020 to answer common questions related to the use of online mediation to try to settle cases. Questions answered include:
To connect with Jean Lawler, follow her on LinkedIn or find her at LawlerADR.com.
To read the full episode transcript please see the Podcast Website.
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JEAN LAWLER:
Hello, and I hope you’re having a nice day today. Thanks for joining me. I’m Jean Lawler and I’m the host of the podcast: ROADS TO Resolution ~Closure and ~Certainty. As a mediator, I’m very honored to be invited into other people’s lives for a few hours, lives that like all of our lives are shaped by the many roads that have brought us to our “todays”, and roads that hold the promise of “tomorrow”. In terms of litigation, the promises of tomorrow usually happen when a lawsuit, or a dispute–even if it's not in litigation–might settle. So let’s talk today about thoughts on online mediation.
With the advent of COVID-19, everything went online and here we are still online. Yesterday I was giving a presentation and one of the questions that someone in the audience asked me was what I thought about online mediations and the future, and are there limitations, special things maybe that you should consider when using an online mediation, etc, etc. So I thought, let me talk about that here.
My first thought on online mediations is–the ability to see and connect with people and emotions. The question comes in usually that, “Well, when I’m in an in-person mediation, I can see people’s body language, and I can see how it is that they are reacting to something, I can read that body language.” Well, you can do the same when it's online. It’s just reading it differently, and once you’ve done it a number of times, you can see that it probably yields the same beneficial results as if you were in-person in a conference room and reading somebody’s language: slouching in their chair, or sitting up straight, or crossing their arms, whatever it might be. People forget that they are online, quite frankly, and especially if they’re in their own office or maybe their own home or conference room or whatever it might be. They’re generally pretty comfortable and will quickly forget that there’s a camera there and will relax, so to speak. I personally don’t think that it's any different reading somebody in an online mediation, than it is in an in-person mediation. It's just different.
After that question came in yesterday, I went back and I checked: About how many online mediations have I handled? And it's 245 it looks like since March 11th of 2020. None before that. And in that time period, this COVID time period since March of 2020, I’ve had one in-person mediation. The impetus for that was that the parties really wanted to be in person, and this is where I can give you an example of where maybe an in-person would be better. And that case settled, that in-person one, and it probably would have settled online too, but these two parties, the two gentlemen involved, owned businesses, they’d been in business together. It was a business dispute, and you know they were quite comfortable sitting at that conference table with masks and all on–asking about how the family was and each other’s families and the like. And I really think they would have done it online, but they definitely were able to do it in-person.
In fact they even asked the lawyers to leave and then they talked it out and figured out what it was that would work best for them, called us back in and ultimately said here’s what they were looking for and then the lawyers did what their jobs were, etc. So that's an example of an in-person mediation. Maybe if there are personal relationships that are so positive where you really want to maintain that–that is a positive for an in-person, but again I would not eliminate the online option.
Sometimes people say, “Well if the damages are too big. You know the case is worth so much money…Does it only make sense for small lawsuits where they’re not asking for a lot of money, or personal injury or things that are less than big huge commercial suits?” And I would agree that there probably does come a time with a commercial suit where it does make sense to be in-person versus online, but I can also tell you that I have mediated and settled online multi-million dollar lawsuits and I have not found there to be much of a difference between the settlements of those that are big lawsuits in terms of dollar amounts and those that are little in terms of dollar amounts. And in general I can say even when I was in practice, it's often harder to settle the smaller value cases than it is the larger value cases. But that’s something.
Also back to the connecting with the individuals… I really think that what you’re seeing when you’re online, it's very intimate, so I don’t think that you miss out on connecting with people either because of how you see each other or whatever, over being in person. When you are online, I think it's just fine.
And then emotions. Emotions can show through too. People have cried in mediations that I’ve had, that have been online. They have been angry, all kinds of, every kind of emotion you might expect: frustrated, sad, happy, all kinds of emotions. And that’s fine, that still comes through the screen too, and that relies on the ability to connect.
I do think too that with online dispute resolution, online mediations, that the type of case, it maybe doesn’t really matter. I’ve had every type of case: from little cases, from personal injury cases, from employment disputes, cyber, and data breach cases, real estate disputes, purchase agreements, landlord-tenant disputes in commercial contexts, bad faith, a lot of bad faith cases against insurance companies, insurance coverage disputes. All kinds, a full range, and they have been fine online.
Where maybe the in-person would be better–I wouldn't even say better–but could be different would be…if you have a lot of parties, and you’re trying to get something done in one day–like insurance allocation or cost-share matters. But then again, I’ve done those online and people appreciate being able to appear online when it's time to talk to them, and then go back to their work, when it's not. And they appreciate not having to travel, and those cases usually don't settle the first day anyway, and so it's the first day to get everything laid out, start testing the waters, so to speak, and then follow up as necessary, or maybe you need a second session. But I personally think that you can mediate any type of case online. So there you go, and it's really a matter of personal choice, and maybe like that one I mentioned where there were real close personal relationships.
But again, I had another business lawsuit where the two CEOs had done business with each other for years and they mediated online, reached a settlement, and as one of the final icings on the cake–so to speak–one of the CEOs offered to take the other CEO out to dinner at the restaurant of that other CEO’s choice, when he would be in town if they settled the case. And they set the date and time, actually, they settled the case, and then they agreed where, when, and what restaurant. That was for a week hence after that mediation–I’m sure they had a nice time and they were able to maintain their relationship, their business relationship.
So that said, that covers that, and then any predictions that I might have…I think it’ll still continue, ODR–online dispute resolution is here to stay in my book. People like it. There will be those cases where people want in-person and I’m sure it’ll be wonderful to be back in person again for those cases, but I think people have realized that the convenience of an online mediation, the cost-savings of an online mediation, and the fact that it works, and does resolve cases, in my opinion, just as if they were in-person. No real difference there. I think that you’re going to see that online mediations become very much the norm and equal, if not more often, than in-person mediations.
One thing that I could see for the future that would be a help is: to be able to have the ability to sign built into the platform, the ability to sign a memorandum of understanding, or term sheet, a settlement agreement perhaps. I know in the beginning you couldn't really do that in Zoom. Now you can, in the sense of using DocuSign, or things like that, where people have become more comfortable with it. There is a platform called Immediation that's out of Australia that does have that ability built-in and I think that that is going to become something that should be the norm, but other than that, there’s still ways to document and confirm settlements that day.
So, those are my thoughts on online mediation. I’m sure there could be many more if we were going to have a long discussion, but time calls obviously. We don’t have that time. So thank you for joining me here today on ROADS TO Resolution ~Closure and ~Certainty. I look forward to seeing you again another time. Please follow me on LinkedIn, subscribe to my YouTube channel, subscribe to my podcast, and if you have a suggestion or a request for a topic, please go ahead and email me: jlawler@lawleradr.com. Thanks so much and take care. Bye bye.
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