In-Person Mediations - My First Experience Six Months into COVID
Six months into COVID, most people have now become familiar with the virtual mediation process. It has become the “new normal” in terms of dispute resolution. Not perfect, but manageable, some might even say convenient and a time-saver. Most importantly however, it is viewed as the “safe” option during a pandemic.
Up until this past Thursday, the last in-person mediation I attended was in early March 2020. I have conducted a number of “partially” in-person mediations since then, either where some of the parties were located outside the GTA (in “low-COVID” areas) and were comfortable meeting with their clients at their offices, or where there were challenges in terms of technological competency which necessitated clients (such as elderly plaintiffs) meeting in-person somewhere with their counsel. I however, had always participated remotely from my home office in Oakville, with defence counsel and insurance representatives generally participating remotely as well.
Reporting services re-opened to host in-person mediations and discoveries in mid-June, with a variety of measures in place to ensure as safe an environment as possible, including limited bookings, enhanced cleaning procedures, mandatory use of face coverings in all common areas, and physical changes to meeting rooms to ensure appropriate physical distancing. Despite these extensive safety measures, however, there seemed to be very little, if any, “collective” appetite amongst the parties to my mediations to stray from the virtual platforms, such as Zoom. “Risk tolerance” for in-person mediations appeared to be exceedingly low (confirmed by the reporting services, who indicated that bookings for fully in-person mediations have been very sparse).
However, in early September, counsel for a corporate defendant in a subrogation claim advised that his clients were “insisting” on an in-person mediation. Somewhat surprisingly, counsel for the plaintiff indicated he had “no preference”, although he said that his insurance client would be participating remotely. Her company was not permitting in-person attendances for their staff at all. So, the stage was set for my return to the world of in-person mediations last Thursday.
I freely confess some considerable trepidation about the prospect of conducting an in-person mediation as the day approached. I spoke with someone at the reporting service about the safety measures in place, as well as the volume of in-person “traffic” at their facility. I was advised that extensive safety precautions remained in place, and that actual in-person attendances at their locations were still “quite light”. Usually, there were only a few groups on any given day, and only the largest of their rooms were being utilized in order to maintain safe social distancing.
When I attended the west-end location of the reporting service last week, the first thing I was struck by was the overall “emptiness” of the parking area and the building generally. I was the only person (other than building staff) in the lobby area or the elevator. Upon reaching the floor on which the reporting service was located, I was the only person there other than two reception staff, both of whom were masked, gloved and seated at the reception desk behind a large glass barrier. I was advised where my two rooms were and invited to let them know if I had any issues with them, or the video-conferencing set-up for the insurance representative who would be participating virtually. The rooms were indeed spacious and the seating very well separated. There was hand sanitizer everywhere, and extra masks were available.
When my mediation participants arrived, they were all wearing masks, and very respectful of ensuring that a safe social distance was maintained at all times. Openings were kept brief, and my presence in the caucus rooms thereafter was limited to only the time necessary to effectively conduct the mediation. Otherwise, I “manned my post” in the hallways. When the mediation was successfully resolved, counsel prepared the Minutes of Settlement and arranged for it to be signed. Facility staff took care of photocopying needs.
So, what are the key takeaways from my experience:
1) First and foremost, I felt safe. All the necessary measures were in place to ensure that, and the mediation participants all respected them. Whether that might change in a more crowded setting remains an open question, however.
2) The process itself was “familiar but strange”, like the old pre-COVID days, but more “solitary” without anyone to “kibbitz” with in the hallways or kitchen (now a “grab and go” only zone).
3) The experience clearly brought back to me the values of an in-person negotiation, with the ability to far more effectively observe the subtle nuances of human communication (body language, eye contact, vocal inflections, etc.) and thereby better discern and evaluate the true positions of the parties. It no doubt remains the “gold standard” in terms of process in my view. That was particularly so in my dealings with the representatives of the corporate defendant, who clearly preferred a more human touch.
4) Although this experience provided me with the necessary peace of mind to do more in-person mediations and reinforced my belief in their “superiority”, unfortunately, I believe they will continue to be the exception. There doesn’t appear to be an end to this pandemic coming anytime soon. Indeed, it appears the “second wave” is now upon us. So, safety will continue to be a primary consideration, which means in-person mediations will almost certainly continue to be a rarity for the foreseeable future.
More significantly, however, there are clearly “structural” changes underway in the insurance industry when it comes to how dispute resolution will be conducted in the future. Now that people have experienced the admittedly fairly effective virtual mediation process and its associated convenience, time and costs savings, that likely means the “good old days” of shuttling back and forth between caucus rooms and “manning the post” in the hallways of a mediation facility are unlikely to return with any frequency.
