Ramping up for Virtual Partnerships in Dispute Resolution

The world was thrust into the virtual world with the global explosion of COVID-19 shutting down businesses, disrupting services and taking a massive toll on lives.

It was a world of rapid transition and one that we had little to no experience in how to navigate. Many of us were left scratching our heads and asking “what could happen next?”

Well, a lot continued to happen, forcing us to think and grow in new ways.

As Jeffrey Kichaven, Esq. wrote in April 2020, he was extremely doubtful that the traditional legal field could successfully make this kind of shift.

But, as courtrooms continued to be closed putting the lives of thousands on hold as their legal case had nowhere to go, the legal and mediation profession kicked into action. By November 2020, Jeff wrote again that he was amazed at how resilient and adept the field was in ramping up online services.

Now, one year later, it’s time to go beyond the basics of using Zoom. As revealed in a national survey (August and December 2020), we took a look at how legal and mediation professionals were impacted by the rapid shift to online services.

This survey was a collaborative one between several individuals and organizations to uncover how professionals were impacted and what were they looking for to expand their skill set (Mark Lassiter, Esq., Harold Coleman, Jr., Esq., Susan Guthrie, Esq. and myself, representing AAA Mediation.Org, Southern California Mediation Association, and the ABA Dispute Resolution Section).***

Many were very dubious in that second quarter of 2020 that mediation and arbitration could successfully work in meeting the dispute needs of people in conflict. ZOOM training on the basics of going online were prevalent and in high demand.

Ramping up DR (1)

Many lawyers | mediators felt stymied by the lack of in-person presence, how to build rapport and establish trust. When it came to what impeded the success of reaching resolution either in-person or online, here are six key insights and takeaways for lawyer advocates and mediators alike:

#1 Four primary areas of law were most represented by those participating in the “Insights from the Trenches” survey:

  1. Civil                55%
  2. Employment 42%
  3. Commercial  42%
  4. Family            40%


TAKEAWAY: While all areas of law may benefit, these four particularly demand attention from mediators and advocates on how to fine-tune the process in working together, largely due to the next few insights.


#2 The greatest impediments to reaching resolution in-person included the following top four:

  1. Entrenched positions                            71%
  2. Advocates unhelpful to the process  58%
  3. Dispute not ready for resolution         53%
  4. Lack of pre-mediation preparation     53%


TAKEAWAY: Various interpretations emerged when looking at these results and what it had to say about litigation as one form of dispute resolution approaches while alternatives do exist. It was deduced that the lawyer advocate with a litigation mindset comes armed to the mediation process with a “let’s fight” outlook instead of a “reaching mutual resolution” perspective.

Shifting the language, shifting the outlook and approach, and shifting the mindset becomes apparent for mediation as a tool of success in resolving disputes, not preserving them. So be on the lookout, soon coming is “The Advocate’s Guide to Effective Use of the Mediation Process.”


#3 The greatest impediments to reaching resolution online included the following top four:

  1. Technical issues                                                                        53%
  2. Participants uncomfortable with the process                      49%
  3. Lack of pre-mediation preparation on technical | process 42%
  4. Inability to assess body language                                           37%


TAKEAWAY: Yes, technology and internet speeds continue to hamper us but have improved substantially since the pandemic started. And, more and more customized platforms for the legal and mediation practice have now evolved. The need to better prepare ALL participants (advocates and parties to the conflict) is evident.

New models of pre-mediation preparation are now available for both the substantive preparation as well as technology rehearsal with the participants. And, if you know the clues to look for, having the video screen available increases your ability to “read” body language for ALL participants.

I equate the technical hiccups easier to deal with than traffic jams, delayed flights and lack of parking!

Ramping up DR (2)

#4 The virtual platform is here to stay!

  1. 50% said they are planning to continue with online mediation.
  2. 75% said they were planning to continue with a hybrid model of service, i.e. both in-person and online.


TAKEAWAY: There is a new “normal” that’s here to stay when it comes to the world of work! So, let’s just get better and better at it, coming up with new and creative ways of doing things that enhance outcomes for people in conflict rather than protracting the conflict in their lives.


#5 The two skill areas most identified as needed for online growth and development include these:

  1. 66% want more strategies on how to enhance the online experience for participants (clients and advocates).
  2. 58% are looking for more tips on how to minimize ZOOM fatigue.


TAKEAWAY: As part of our ethical responsibilities in advocacy or mediation, we keep on learning! We now have the opportunity to design and manage our online processes in ways that enhance the experience and draw upon multi-media venues.


#6 While the benefits of going online were found to be many, the two most cited include these:

  1. 92% like the convenience.
  2. 88% acknowledge the reduction of costs.
  3. 66% found their mediations to be more efficient.
  4. 66% found greater access to a more diverse clientele, broader reach geographically, and expansion of service types.


TAKEAWAY: Like #4, the online approach to legal and mediation services is here to stay. And, when we consider benefits like those in #6, what’s not to keep by staying online! It’s time to continue advancing online skills and platforms while also improving the delivery of customized services while making ourselves and our participants more at ease with the new “normal” of online dispute resolution.

While once a unique approach to mediation, it’s now mainstream.

Along with my colleagues, Mark Lassiter, Harold Coleman and Susan Guthrie, I am ready to launch our 9-part series with practicums, The Anatomy of Virtual Mediation: Multi-Party, Multi-faceted Dispute Resolution, starting February 1-20, 2021.

Just a few spots left so click here to register or join the waiting list.

***Interested in having your voice heard?

Click here to take the advanced version of “The Virtual Lawyer | Mediator Survey” managed by the ABA DR Section; results to be published at the April 2021 ABA Conference.

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