BACK TO THE FUTURE – WHERE DOES MEDIATION GO FROM HERE?

By: Richard P. Byrne, Esq. | August 2020

Is there dialogue from a film more apropos to our current wants and desires than the following?

            Doc Brown:  Marty, you gotta come back with me!

            Marty McFly:  Where?

            Doc Brown:  Back to the future!

           Back to the Future – Universal Pictures | Amblin Entertainment © 1985     

We all want to get past our present state of affairs and back to a future where coronavirus doesn't impact and influence our day-to-day existence.  And, hopefully, with small and careful steps forward, while the race for a vaccine continues, that time will come soon.

What will Mediation look like when that day arrives?  Will there be in-person Mediations?  Yes, absolutely.  Will there be virtual Mediations utilizing videoconferencing?  Yes, absolutely.  Will there be Mediation sessions employing both in-person and remote participation simultaneously?  Again, the answer is:  Yes, absolutely.

The almost overnight, complete shift from in-person to virtual Mediations occasioned by the pandemic has remarkably and successfully proven the old adage that “Necessity is the Mother of Invention” or, perhaps more accurately, “Necessity is the Mother of Adaptation.” And while there was significant and understandable hesitation on the part of many as we stepped into this new realm, that anxiety passed as experience was gained and we became accustomed to our “new normal” in mediating matters.  Is it perfect?  No – it isn't.  It doesn't fully replace the intangible value of being present with one another and having the ability to engage on a face-to-face basis.  And the professional camaraderie is somewhat diminished too – attorneys seem more compelled to get down to business – perhaps with the “formality” of a videoconference discouraging the telling of tales and sharing of anecdotes.  At the same time, there is certainly a distraction factor inherent with being at home and not in a hearing room, including WiFi issues, family members and, at times, pets being introduced into the equation.

Even with all that, though, the convenience, cost-efficiency and overall effectiveness of virtual Mediations cannot be disputed – the results speak for themselves!  There is no question that remote participation is here to stay and will become an institutionalized part of the Mediation process in a post-coronavirus world.  Will the needle go back from where matters stand today having the large majority of Mediations conducted remotely?  The answer is yes, of course, it will.  But the needle is not going all the way back to where it stood in early March 2020.  We have experienced a paradigm shift, which, in the end, will enhance the process by allowing parties options and flexibility in the means and methods available to attend and participate in Mediation.

There will be a transition period – in fact, it is already beginning to get underway – where one or more parties are of a mind that any limitations which may currently exist due to required protocols, i.e., social distancing and the wearing of masks, are outweighed by being present before the Mediator.  Right now, these Mediations are in the minority, but the scales will continue to move into greater balance as people become more comfortable interacting in a pre-vaccine setting on an interim basis.

Fortunately, the technology, which is available and the experience which has been gained since the onset of the virus will allow counsel and their clients to decide on a case-by-case basis which avenue of participation best suits their needs as we continue forward – toward the goal which unites us all – to get back to the future.

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Richard P. Byrne, Esq.,  is a member of NAM's (National Arbitration and Mediation) Hearing Officer Panel and is available to arbitrate and mediate cases throughout the United States. He has successfully mediated issues in a wide variety of specialty areas, including commercial matters, employment discrimination claims, employment contract disputes, construction litigation, complex personal injury and property damage claims, together with insurance, reinsurance and risk transfer matters. Mr. Byrne has earned the distinction of being voted a Top 3 Mediator in the United States for the sixth straight year in the 2020 National Law Journal Best of Survey.  Further, he was ranked a Top 10 Mediator by the 2019 New York Law Journal Best of Survey for the past five years.  He was also voted a Top 3 Mediator by the 2018 Corporate Counsel Best of Survey and for the third straight year, was named a National Law Journal Alternative Dispute Resolution Champion, as part of a select group of only 46 Neutrals nationwide.  He has been awarded an A-V rating by Martindale-Hubbell, the highest rating available, based on its peer review process. 

Meet the Author

For any questions or comments, please contact Jacqueline I. Silvey, Esq. / NAM General Counsel, via email at jsilvey@namadr.com or direct dial telephone at 516-941-3228.