Virtual v. in person ADR: What does the future hold?

March 8, 2022 - Since the onset of the Covid-19 pandemic two years ago, the legal world made a quick pivot to remote work. Law firms shut their physical doors, but lawyers and staff created home office space supplied with firm-issued cellphones and laptops. They began using long-ignored technology like Zoom, Teams, Skype and WebEx, which in turn improved their products to host safe and efficient communications among lawyers, clients, and courts.

The courts, too, adjusted — albeit more slowly — to conduct business virtually. Conferences with counsel were easy to arrange, but attendance by parties, and eventually jurors, was far more challenging. The focus of this article, however, is the impact of this "new normal" on the world of ADR.

Prior to the pandemic, despite the existence of technology, 100 percent of mediations were held in person. Lawyers travelled to the selected location for the mediation as did their clients. At times, the mediator travelled to the location where the majority of the lawyers and clients were based. Often the travelling parties would fly to the selected location the night before, incurring the costs of the flight, the hotel, and often expensive dinners.

Arbitrations, too, were almost always held in person, except that occasionally some witnesses participated via video if they were either unable to travel, or their attendance was impractical due to their distance from the seat of the arbitration. This model — now known as a hybrid — had begun to gain acceptance in the arbitral community.

All of this changed with the pandemic. Now, almost all mediations and arbitrations are conducted virtually. This seismic shift raises a host of interesting questions. Are the virtual proceedings as effective as the live ones were? Can the mediator or arbitrator establish the same rapport with the parties as when everyone was in the same physical space? Will the ADR world return to live proceedings once the pandemic is considered over, and everyone feels safe sitting in the same space?

Is the hybrid model the more likely choice? Are there advantages to virtual proceedings over live proceedings, such that there is no going back? There are surely more questions that could be asked, and there are no easy answers to any of them. Nonetheless, it is well worth addressing the pros and cons of each modality.

I begin with mediation. There are all kinds of mediation. Sometimes the parties initiate mediation because they truly believe their case is likely to settle and should be settled. In those circumstances, the parties seek to avoid the uncertainty of a trial outcome, as well as the time, expense and resources a trial will require. But at other times the underlying contract requires a mediation before the parties can proceed to bring a lawsuit or initiate an arbitration. And at yet other times, the court compels the parties to mediate even when they might not otherwise choose to do so.

These different scenarios might affect the preference for a virtual mediation versus a live mediation. My best guess is that only the first category will prefer a live mediation. When the parties are optimistic and anxious to reach resolution, they may want to bring their decision-makers and meet face to face with their adversaries who quite often were (or still are) people with whom they have established business relationships. In those situations, the time and expense of travel may be worth it if the parties believe that in-person meetings will allow for a personal interaction in a way that boxes on a computer screen cannot.

For the other categories, which I will call required mediations, my guess is that virtual mediations will become the default mode. The savings in time and expense is the key factor. Virtual mediations allow for the attendance of more lawyers and more clients with no added expenses. Because the outcome of these mediations is less certain at the outset, there is no reason to spend money when the likelihood of a successful mediation is unknown and there are no statistics showing that in person mediations have a higher success rate than virtual mediations.

A singular advantage of virtual mediations is that the parties have a far broader choice of mediator — as that person can join in from any geographic location. Thus, the parties can select a mediator from a much larger group which also provides opportunities to select more diverse mediators in areas of the country where the ADR community may be small and not particularly diverse. This is good for the parties and for the neutral ADR community.

One final note that applies to both mediation and arbitration. Unlike court proceedings, these dispute resolution processes are party-controlled. As ADR professionals often say, "this is your process." Thus, if post-pandemic the parties have a preference for live over virtual, then the mediation will be live. They may have their reasons for that preference, and there is no basis for the mediator to override the decision of the parties.

The dynamics of arbitration are a bit different than mediation. One difference is that witnesses are testifying and are subject to cross-examination. Some counsel have expressed the belief that it is much harder to cross-examine a witness on a computer screen than in a room when she can look the witness in the eye and observe all of his body language, not just his face. Another difference is that exhibits are shown to the witness and the arbitrator(s), and sometimes a witness will use or create demonstrative exhibits. Screen sharing does allow this in a virtual setting, but many witnesses and counsel — and indeed some arbitrators — are more comfortable with exhibits that they can mark up or highlight as the witness testifies.

A third difference is the trust factor. Most arbitrators now ask a witness to state that she has no notes in front of her and has turned off her electronic devices and that no one else is in the room. But, in reality, there is no way of knowing that the witness is complying with those instructions. Suspicions may linger that a witness is in fact using material that she should not have access to during her testimony.

In addition to these differences, there are often technical problems that interrupt the flow of testimony. In one of my arbitrations, one of the three arbitrators repeatedly lost connectivity and was very frustrated as were the parties. On another occasion, the court reporter had a great deal of trouble hearing a witness whose microphone was simply not of high quality. On other occasions, internet connections for some participants became unstable and their attendance was interrupted or sporadic.

While technical problems have likely diminished with experience over the last two years, a survey of participants would likely show that there are still technical issues that arise in every arbitration. It is also difficult to quantify what many have called "Zoom fatigue." Staring at a screen for eight hours is surprisingly tiring. Finally, the loss of camaraderie or social interaction among the panel of arbitrators is another unquantifiable downside of virtual arbitrations.

On the other hand, the savings in time and expense, discussed above with respect to mediation, are equally true for arbitration. Cost-conscious litigants are very happy not to pay for travel time, and travel expenses for many lawyers and for witnesses. And the benefit of expanding the pool of arbitrators beyond the geographic seat of the arbitration is also a plus as it is in the context of selecting a mediator. In some cases, cost is simply not a factor given the amount in dispute.

As noted earlier, the parties may well decide whether the majority of post-pandemic arbitrations will return to in person rather than virtual. After all, it is their process and the arbitrator(s) will not override their choice when health issues are no longer a concern. Predictions are always dangerous, but my guess is that more than half of arbitrations will be held in person. That said, if the other half will be virtual that is an enormous shift from pre-pandemic practice.

In conclusion, parties will make the choice between in-person and virtual. The parties must carefully consider what is best for their clients and for their case. There is no one answer. Every case has different dynamics. What we do know, however, is that the decision of the parties will be respected by the ADR community.

Hon. Shira A. Scheindlin (Ret.) is a regular contributing columnist on alternative dispute resolution for Reuters Legal News and Westlaw Today.