To Wait or to Mediate?

Q: Why is mediation used so frequently in insurance lawsuits? 

A: Mediation has always played a large role in resolving first-party property claims.  Mediation offers a unique opportunity for resolution that is hard to find elsewhere in the life of a litigated case.  It offers the chance for the parties to come together and attempt to resolve their dispute in real time with the advice and representation of their counsel.  It is often the last chance for the parties to do so before beginning to incur fees and costs associated with trial preparations.   

Q: How has your experience been mediating cases in the era of the Covid-19 pandemic and video conferencing?

A: My experience mediating cases via “zoom” and other videoconferencing platforms has been very positive.  Most mediators have well-established procedures for video mediations by now.  As litigators, we immediately considered the implications of the pandemic on the interests of our clients’ cases.  I think mediators immediately considered the same thing and responded by coming up with creative and clear procedures to mediate cases from afar.  It is true that every case is different and not all cases are suited for virtual mediation.  However, I have to admit that virtual mediation has been an excellent tool thus far in resolving cases. 

Q: What does a virtual mediation look like?

A: The mediator’s office will secure a time slot for virtual mediation and send a video link to the parties to coordinate the mediation.  Once the time arrives to mediate the case, the mediator, plaintiff, plaintiff’s counsel, defendant, and defense counsel will each log in with the link and appear from their own home or office.  The mediator will give remarks, followed by the respective statements by counsel for each party as it would proceed in an in-person mediation.  Then, the mediator will provide each party with a link to enter their own, private, virtual “caucus rooms.”  This will take each party to a video screen that includes only the party and their counsel.  The mediator appears back and forth between the “rooms” to facilitate mediation.  The mediator can also be summoned by a button if needed. 

Q: What is the most difficult aspect about mediating a first-party property case virtually?

A: In my experience, the most difficult aspect of virtual mediations in the context of first-party cases comes with the added variable of technology in the application of “Murphy’s law.”  It is possible that an unforeseen technology issue could arise and delay, or further complicate, a mediation.  It is understandable that this could happen.  However, I have only had a couple of small issues during mediations.  I think the majority of virtual mediations appear to be smooth.  I have found that mediators have been ready to help as well, such as carrying on a telephonic mediation due to momentary video issues.  Mediators have been understanding and accommodating of any such issues. 

Q: Is virtual mediation less effective than mediating in person?

A: Again, not every case is the same.  But I have found virtual mediation to be just as effective thus far.  Plaintiffs usually appear from their home.  I have spoken with some plaintiff attorneys that have found virtual mediation helpful because their clients can often make a decision about resolving their property claim from the property itself.  They can entertain potential settlement numbers from the comfort of their own home, where they feel safe.  Our clients often appear from home or their office also.  Many clients have found it seamless to mediate a case remotely. 

Q: Have you noticed any benefits with virtual mediation?

A: Absolutely.  Some benefits were noticeable right away.  The ability to attend mediation virtually allows the parties to save the time and associated costs of travel and instead put those resources into the mediation itself has been a benefit in many ways.  Some benefits have been unexpected but welcomed.  For example, virtual mediation allows the parties to easily access and use documents during the mediation.  I can email the documents to the mediator with any desired mark-ups or highlights, and zoom in closer on photographs as needed to point out details to the mediator.  The mediator is then able to convey the same to the opposing party.

The question on everyone’s minds is: Are they here to stay or will in-person mediations likely resume when possible? Or perhaps the two forms will co-exist successfully.