Reenvisioning Mediations in the New Normal

ODR (Online Dispute Resolution) is all the rage nowadays and, while potentially not as effective as good ol’ fashioned face to face mediations, it’s clear that it does have certain advantages in some circumstances.

A typical mediation involves the parties meeting somewhere, jointly, with a mediator. Usually, the parties separate into separate caucuses and the mediator does a version of Kissinger’s shuttle diplomacy, moving from caucus to caucus, talking with the parties separately and working towards a middle ground. It also means that the parties, when they’re not caucusing with the mediator, spend a lot of time sitting around, waiting.

Imagine a mediation scenario where the parties meet online, such as through Zoom. That’s the simple part and that’s the basis of ODR. But rather than have everyone sit around, waiting, while the mediator caucuses with the other parties, what if the parties agreed to set a series of meeting times for the caucuses? What if one party agreed to make themselves available at 10 AM on a Monday, and the other party agreed for 10 AM Tuesday? Then the cycle repeated. The parties could then be far more productive, both on the day of the scheduled caucus and on the entire “off day”. There would be no down time for the parties. No crossword puzzles done, no solitaire played and no belly button lint plucked. And, it would eliminate the “motivated by fatigue” element that sometimes comes into play near the end of the day (which, admittedly, can be either a positive or a negative or, sometimes, both).

Of course, this draws out the number of days a mediation may require to complete but it doesn’t draw out the costs. If anything, parties save money because they will not have to pay for their attorneys down time (See Lint, belly button, supra).

This concept will not work for all mediations. But there definitely are some mediations — particularly in the business context — that would benefit greatly.

For more on this idea, click here.