What Lies Ahead for Court Mediations During the Pandemic
Since the pandemic began, courts have had to make several adjustments. As an example, the Los Angeles superior court––after being closed for months––had to catch up with new filings and also ordered that all civil trials be postponed until at least early 2021 to allow time to deal with over 7,000 criminal cases awaiting trial. Now, many courts are operating on a virtual basis, and the services that were once available to people in courts and other public places are trying to find a comparable path forward. In California, you would think we would have already had video conferencing capabilities in place for most everything, but that was not entirely the case. The pandemic has given many court systems a violent shove into the 21st Century out of necessity.
Courts and public offices have tried to test online formats for mediation in addition to in-person attempts before the pandemic began with some success. These can often be beneficial, as it is difficult for multiple parties to convene at one place at one time. However, having participated in some of these programs, I think where they lack the availability to include video in the call, they lose out on higher chances of success.
Don’t get me wrong, the idea is wonderful. I’m about efficiency wherever possible––if it makes it easier to get things done faster with similar quality, then I’m all for it. And these programs do achieve success, but for some cases, the chances of success seem to be better when people can hear AND see each other. It makes it easier for the parties to personalize each other, even where no real relationship existed between them before.
In addition, I would argue that the mediator has a better edge in helping people where there is video. The mediator often has to deliver undesirable news, ask difficult questions, and try to get a stranger to open up to them in order to help resolve something very personal and important to them. Not being able to see the mediator creates difficulties with trust. Also, the mediator’s inability to read body language sans video makes it harder to decide how to approach situations that come up during a mediation session, or when to change an approach, etc.
Some dispute resolution programs have now begun using different programs that go even further by trying to get the parties to resolve things on their own without the assistance of a mediator. Most of these online programs ask the parties a number of questions and generate an auto-filled agreement for signature and submission to the court. They essentially serve as an online negotiation tool.
While this may work for some limited disputes, the lack of a human mediator to help the parties communicate, identify the issues and what options are available is a huge detriment in my opinion. It also leaves missed opportunities for additional provisions in an agreement that could make it more optimal. In mediation there are often small things not always central to the main issues that could be added or addressed to further satisfy the parties. Sometimes smaller tangential things can make a huge difference between getting an agreement done or not. This is an area where a mediator’s intuition can’t really be replaced because they are not always things the parties have thought to address.
One may think it should be easy for people to resolve their own legal issues privately, but this is much easier said than done. Once emotional attachment to the issue or negative personal exchanges take place, it is very difficult for many to effectively self guide a path to resolution when the parties interact amongst themselves. A third party neutral like myself is a wonderful tool to help with that and avoid the pain of dealing with courts altogether whenever possible.
So, while there are some great online alternative dispute resolution (ADR) programs out there, the results seem to be better when parties can see and hear each other, and when a mediator can be present to help guide them through the process.
For more in depth information on the benefits of video conference mediation, see my blog specifically on that topic HERE.