I had the privilege of representing one of the litigants in the first ever virtual civil trial held in the Western District of Washington. I’ve also had the privilege of mediating virtually with Pacific ADR. Here is a quick look at how they compare.
Choice of Technology
With virtual mediations, you have every form of technology on the table. The mediation can be done entirely over Zoom in “rooms” where the mediator toggles back and forth between however many parties are participating. Other times, the full Zoom experience isn’t necessary. In a recent mediation of mine, one party preferred to use only the telephone and not to appear via Zoom. The other party wanted to appear via video for the first few communications and then proceed via telephone for the rest. Done and done. One party’s communication preferences were not revealed to the other. I was certain that the choice to use the telephone rather than appear on video would not interfere with the effectiveness of the mediation. The mediation was indeed successful, and we settled the case.
In a virtual trial, such flexibility is not an option. I can only imagine what the judge’s reaction would have been in my trial if one of the attorneys or witnesses said “you know what, your honor, I don’t want to use this WebEx software. I’ll just phone in.” There may be a special dungeon in the federal courthouse specifically for attorneys or litigants who make such a request. For legal reasons: upon information and belief, no special courthouse dungeons have been identified at this time.
Experts
My client saved thousands of dollars by proceeding to trial virtually. The virtual trial eliminated the costs of expert travel, lodging, and excess time waiting around the courthouse. Every word of testimony that needed to be said was said. The cost saving alone was a massive victory.
While mediations do not generally present expert witness testimony, the expense and hassle of an additional person joining a mediation is eliminated by proceeding virtually. In standard in-person mediations there may be roadblocks when one side requests that a person with ultimate settlement authority must be present in the room to proceed with mediation. Sometimes there is a person in New York with the ultimate authority for approving larger settlement amounts and the mediation is taking place in Seattle. With virtual mediations, requests like these are accommodated much more easily and inexpensively.
Effectiveness
In my federal trial, I was able to present evidence as I would have been able to present in an in-person trial. In my mediations, the same has been true: the functionality remains completely intact. All of the information that needs to be conveyed can be conveyed.
Conclusion
In light of the foregoing, I believe virtual trials may well continue into the future. Without a doubt, virtual mediations are here to stay. Even if we get to a place where health risks of in-person mediations are minimal, I don’t anticipate that in-person will necessarily be the default. Just as “the toothpaste is out of the tube” in terms of the work from home revolution, the minty freshness of virtual dispute resolution can’t be pushed back where it came from. Now that enough attorneys and parties have seen how convenient and cost-effective virtual mediations can be, I think they will continue to be a regular part of the spectrum of dispute resolution options.
I’m seeing extremely high success rates for virtual mediations. Surprisingly high. It’s almost as if the increased efficiency is allowing attorneys and litigants to more efficiently handle their caseload, get great and fast results in their cases, and move on to what’s next. Or maybe the fact that everyone is wearing sweatpants results in increased blood-flow to the brain and therefore smarter decisions and higher productivity.