Digital “Zoom” Procedures for Mediation
Almost overnight, all parties and litigants have had to use the various types of “zoom” conferencing that few of them had ever dreamed of using before the 2020 Pandemic — and there is no going back. Gone forever are the days in which anything less than the physical presence of all participants for any legal proceeding of importance appeared unthinkable. The inertial rhetoric of “Why fix what isn’t broken?,” has been replaced by the question “Why not?”
Oftentimes, procedures like mediations, arbitrations, and the ability to present admissible testimony at trial, often depended upon costly logistics, after allowing for travel, weather and circumstances, and conflicting obligations. Litigants often paid a steep price by being unable to secure the most helpful or efficient experts and having to settle, instead, for whoever happened to be available, or for unchangeable procedures rendered ineffective by any number of circumstances arising in the interim.
With the acceptance of digital appearances, and the essential ability to read demeanor, now regardless of location, something that is impossible by audio alone — procedures to efficiently resolve claims on their full merits has reached an entirely new plateau. Far greater percentages of both attorney time and expert time, and their respective fees, are spent on analysis of claims and evidence, rather than on travel and logistics or in dealing with all of the related tactical issues. Procedures can now be segmented – something that would have been prohibitively costly before. For example, litigants can mediate or arbitrate a single threshold issue, or a series of key issues in sequence, rather than everything at once, which may prove sufficient to resolve the claim without having to incur the cost of deciding all of the issues in one hearing.
Creatively setting up a series of partial mediations, intermixed with partial arbitrations, allows for full focus on the most important issues, one at a time, involving only those experts and litigants and attorneys most interested in each such issue, all in a far more efficient manner. At each hearing, the mediator or arbitrator can bring the most crucial parties and counsel together in any number of groupings in digital rooms, and change those groupings digitally, as the need presents itself; all while the rest of the parties and counsel continuing developing their claims and presentations in any number of concurrent, but private communications between any selection of participants, while having all evidence and related files immediately at hand. The incredible efficiency of such heightened flexibility cannot be overstated.
But, like anything else, there are downsides. Greater concentration is definitely required to fully assess demeanor and the countless non-verbal cues and communications, when viewing them digitally, compared to either audio or physical face-to-face observations, which we have spent our lifetimes perfecting. There is also some of the demeanor that is not seen, that we could choose to examine if physically face to face. Some of the body language is always omitted from a screen appearance, especially when controlled entirely by the person sitting in front of their computer’s camera — resulting in a higher risk of misreading someone – especially as we learn to communicate using digital visual appearances.
Finally, what goes on just out of sight, such as coaching of witnesses or the body language and demeanor of those off-screen who might literally be directing the person(s) on screen, much like a Hollywood production, might serve to diminish the truth-finding purpose of face to face appearances. Predictably, such concerns rise with the amount at stake, as does the willingness to expend resources on legal procedures to address each such detail. For the vast majority of litigation claims, however, any such deficiencies in digital appearances are either corrected by better use of advancing technology, and, regardless, already far exceeded by the flexibility and efficiency, and by the resulting effectiveness that is realized with zoom assisted procedures.