About two-thirds of attorneys say they are willing to continue using videoconferencing for mediations and arbitrations after the pandemic is over, according to recent surveys.
Denver-based mediator and former judge Robbie Barr of BarrADR sent surveys in March to 100 of her clients to gauge their sentiment about remote ADR and returning to in-person mediation and arbitration. Of the 60 attorneys who responded, most of them based in Colorado, 69.5% said they would likely continue using video platforms for ADR even after the state reduces physical distancing requirements.
Barr handles mediation and arbitration in cases ranging from civil rights and environmental law to commercial transactions and probate matters. She is quick to note that she is not a statistician or professional pollster, and the respondents were limited to her own clients. But her results mirror those of a national survey conducted in September by the National Academy of Distinguished Neutrals, which found that 65.6% of litigators would likely consider Zoom or other video platforms for some mediations or arbitrations after the pandemic.
Of the NADN respondents, 22.2% said they would be unlikely to consider video ADR and 12.1% said they were undecided, while just over 10% of Barr’s respondents answered “unlikely” and about 20% were undecided.
Among litigators who say they plan to continue online ADR in the future, NADN found that 22% would like to attend three-quarters or more of their arbitrations and mediations online. Just over half said they would prefer to attend between 50% and 74% of arbitrations and mediations online.
The results suggest attorneys have quickly become comfortable with technology they had barely touched a year before. According to NADN, only 2% of litigators had ever attended a video arbitration or mediation before March 2020. Six months later, 95% of litigators were primarily attending meetings online.
While attorneys said they are willing to participate in video ADR in the future, Barr’s clients indicated they are equally willing to resume meeting in person. As of late March, about 68% of her respondents said they felt “comfortable” about returning to in-person mediations and arbitrations, while the rest said they were “uneasy.”
“I was a little surprised that as many were willing to return now,” Barr said. Asked what they would need to feel comfortable meeting in person, several attorneys said it would depend on vaccination rates or the vaccination status of the participants, while others said it would depend on their clients’ preferences or the ADR specialist’s conference room facilities.
Barr also asked the attorneys about the feedback they have gotten from their clients about their virtual ADR experience. According to the attorney responses, clients had mostly positive or neutral feedback about the online ADR process, with many saying it is more convenient, comfortable and efficient.
“It seemed to me that the attorneys felt more strongly about returning in person than their clients,” Barr said, adding that she was “surprised that the clients and the attorneys were not necessarily aligned” in their preferences.
Barr said this might be because there is “a certain physical intimidation factor and discomfort” that clients have when they are in the room next door to the opposing party, and that discomfort is not there when everyone is gathered on Zoom.
“On the other hand, there’s a certain immediacy that you do capture in person and in the type of rapport that you have in person,” Barr said, which is something several attorneys said was missing in online mediations. Several attorneys commented that it is difficult to read body language remotely, and a few said there was less trust among parties and the urgency of reaching settlement was diminished in online mediations. One attorney said people are more likely to walk out of a Zoom mediation and are less committed to the process.
Yet many others reported that online mediation hadn’t affected their ability to reach settlements, and attorneys also appreciated the convenience of videoconferencing platforms.
About 32% of Barr’s respondents said their ability to effectively advocate for clients was worse on video platforms and 66% said it was the same. Only one attorney, or 1.7%, said they were better at advocating online. The NADN survey respondents responded similarly, with 68% saying their abilities were the same online and in-person, 27.8 percent rating their abilities as worse and 3.7% saying they performed better via videoconferencing.
In Barr’s survey, 80% of respondents said mediators were equally effective at resolving disputes in person and online, while 18.3% said mediators were less effective online. The NADN survey showed that 72% of attorneys felt their mediator’s effectiveness was the same regardless of format, while 25% said it was worse and 3% said it was better.
“My goal in doing the survey was to plan ahead and think about what we can learn from the pandemic and how can we retool our work life to meet client expectations and needs,” Barr said. “And I wanted to see what the advantages are to see if I could capitalize on those.”
Barr said she has been thinking about how to combine the “immediacy and impact” of in-person mediation with the convenience and cost savings of remote mediation. One idea has been to offer a hybrid model, where some participants are remote and others are together in person. For example, an insurance adjuster in Omaha or a plaintiff with childcare obligations might videoconference into the mediation while one or both attorneys meet in Barr’s office.
Barr admits she was a “little disappointed” to find attorneys were less enthusiastic about the idea of some, but not all, participants attending remotely. A third of her respondents said they would “likely” agree to attend if only some participants were remote while 21.7% answered “neither likely nor unlikely.” Just over 23% said they would be unlikely to attend under those circumstances.
“Although it seemed to me the majority were open to it, they just weren’t sure exactly how it would work. And honestly, I’m not sure exactly how it’s going to work,” she said, adding that “the onus is on me to figure out how to do that.”
Barr said that, from personal experience, she has not found it more difficult to settle cases over Zoom. “I think I’ve probably settled either the same amount or more,” she said.
Attorneys are trained to follow precedent and look to the past, Barr said, and the legal profession is slow to change. But she was encouraged by her findings that people were open to continuing remote mediation and arbitration in the post-pandemic world.
“I think the only thing lawyers have to fear is fear of change,” Barr said. “If we can jump that hurdle with technology, we’re going to be so much better served.”