The Elephant in the Room

When we first started developing a prototype for ADR Notable, we were very conscious that we were venturing into uncharted territory. Because it’s the first-of-its-kind technology tool created specifically to help mediators in face-to-face mediations, we heard concerns about having a laptop on the table during a mediation session. Would the screen become a barrier? Will using a keyboard divert my attention from the people in the room? Would I miss important non-verbal cues if I used this? We took these concerns seriously and designed our mediation software to minimize them.

To be fair, this was not universal. Many professionals told us that they regularly take notes on a laptop or iPad. We heard lots of feedback along the general lines of “that’s the way I have always worked, that’s the way my clients work, and no one thinks twice about an open laptop on the table.” And in their 2019 research paper, Mind the Gap: Bringing Technology to the Mediation Table, Professors Alyson Carrel and Noam Ebner make the case that a wise use of technology could enable dispute resolution professionals to “help parties to deal with conflict better than we have ever done before.”

But now technology has been brought to the mediation table in a way — and at a speed — that nobody could have foreseen. In the past month, we have all seen a myriad of interesting and insightful blog posts, articles, and webinars about conducting mediations during a time of social distancing. Most have been positive, and many seem to feel that remote video mediations, at least, are here to stay. Retired federal judge Vaughn Walker opines that “…the fact that we’ve been forced to use these technologies—it’s going to stick.” And Sheryl Seiden, founding partner of Seiden Family Law, agrees. “While I still have a preference for in-person meetings, I do think that video mediation could provide a valuable tool for the future — it saves people time traveling to the mediator’s office and money paying for one’s counsel to travel to the mediator’s office. It permits a party to spread out in his/her space to prepare for the mediation in a familiar and comfortable environment. While the future of video mediation remains to be seen, it is certainly a tool that we should embrace.”

Others are not so sure. Independent mediator Jeff Kichaven surmises that “just as many first-chairs were dragged kicking and screaming to mediation 25 years ago, their son and daughter first-chairs will be dragged to video mediation today — or in 30 days or 60 or 90. Some will love it. Some will adjust grudgingly. Still others won’t find it their cup of tea.” In an informal survey that he conducted of business trial lawyers and senior claims executives, respondents reported that they were reluctant to adopt video mediation technology by a margin of about 4-to-1. Would mediators themselves respond in the same way?

So we would love to know what you think. While ADR Notable will work equally well for in-person and remote mediations, we are interested to know if this crisis has caused a shift in opinion on using a laptop in general during a mediation.

Has the experience of conducting mediations during the Coronavirus pandemic changed the way you feel about using a laptop during a mediation session? If so, how?

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