Like many others doing Mediation and Parenting Coordinator work, I found the arrival of the pandemic in early 2020 caused a sea-shift in the way I had to approach my work.
The learning curve wasn’t all that intimidating. An almost immediate transition to using technology, however, was necessary to fill the gap in services left by the restrictions imposed on in-person gatherings. The use of technologies such as Zoom conferencing facilitated an almost unbroken delivery of services to help litigants embroiled in divorces, civil suits, child custody and other court matters.
Litigants and counsel soon realized and continued to appreciate the unexpected benefits associated with the use of technology including the convenience of being able to participate from almost anywhere, the reduced cost achieved through limiting travel time to attend meetings, and the litigants’ ability to participate from a familiar, secure, comfortable environment-their home or their own office. The ability of a litigant to participate in what likely is an unfamiliar process in a comfortable, known surrounding such as their own home is what I want to talk about.
As lawyers, we are generally used to dealing with clients face-to-face; such interaction is so common we probably take it for granted, at least we did until our world changed in 2020. Courts and lawyers had to change things up very quickly to meet the needs of consumers of legal services. I found Zoom conferences met those needs and did so in a convenient, cost-effective way. I have used Zoom for over 18 months and have come to believe there are only a few instances in which it is probably not the most convenient, efficient and cost-effective way of conducting court-related business; the exceptions are discovery (deposition) and evidentiary hearings, including trials, because of the need to see, evaluate and judge the credibility of witnesses, especially during cross-examination.
Parenting Coordinator and Mediation work is so perfectly suited to the use of video conferencing, I hope the legal field will enthusiastically embrace it for the future. I have found the use of Zoom in mediations, with the ability to use the “Share Screen,” breakout rooms, “whiteboards” and easily transition between opposing parties, to be a tremendously effective way of working with the parties as well as a very effective way to talk to them about the law, the facts and aspects of their case that might otherwise be difficult, logistically cumbersome or ineffective to get points across to them in an in-person meeting.
More recently, I’ve come to also believe that cases which may last more than 4 or 5 hours, involve more than the usual “stressed out” client or a litigant who just does better in their own home, are more likely to withstand the rigors and stress of a long day of mediation when the client is in their own home or other chosen location. Comfortable surroundings (rather than a lawyer’s office or conference room) can make a very big difference when you spend 7, 8 or 9 hours working towards a difficult, mediated-resolution of a case only to have, at that point, a litigant who is frazzled, tired, and uncomfortable who wants to quit and call it a day. However, if they had been able to participate from their home (or another location of their choosing), they might well have been able to better endure the hard work of a long day of mediation and successfully conclude their case.
I say this because I’ve participated in such mediations; long days, uncomfortable surroundings, such as a conference room not built or designed for 8-hour days of hard negotiations, and little opportunity to walk around, stretch your legs, grab a snack, use your own bathroom, pet your cat/dog, take a deep breath and look out your own window at your favorite or most relaxing view. It can be exhausting and excruciating even for those familiar with the process.
Taking a step back and reflecting about the goals of a mediation will readily bring the benefits of Zoom mediation into sharp focus. A Zoom mediation allows you to have a “private” room with your client—totally private, safe and non-threatening (to the client). It’s as if you were sitting next to each other in your office. It is a voluntary process in which you are working with your client in an attempt to avoid the (further) expense of discovery, trial preparation and trial. You are on the same team, you don’t need to see the client in person, there is no cross-examination, no “credibility” evaluation, no evaluating “body language.” You want the client comfortable, confident, thinking clearly and as relaxed as possible—keep in mind if they are at home, they can get up, walk around, get food/snacks, use their own bathroom, sit where they do their most comfortable thinking and relax (if possible). I’ve seen the difference in “real time.” I think there is a difference and the relaxed, less stressed-out client, who is comfortable making a difficult decision at the end of a long day is the more likely client who will be psychologically, emotionally and physically rested enough to take the last step and “seal the deal.”
If you’ve ever spent a long, long day struggling to settle a difficult case that you know should not go to trial only to have your client freak-out after 7, 8, 9 or more hours of negotiations because they were too exhausted to think anymore, I can share with you my strong belief that pursuing an anticipated difficult mediation with your client choosing where they want to be can make a huge difference. The location from which your client chooses to participate in mediation may be the difference in monumental frustration and well-earned appreciation from a client.
Research in the medical field evaluating patient satisfaction with the use of video conferencing to address patient care supports my conclusion about the increased satisfaction your client will probably have with the mediation process when they get to select a familiar, comfortable location from which to participate. One medical research study found:
The study, led by researchers from the Cleveland Clinic, surveyed 426 adult patients with a virtual visit between June and July 2017 – notably, before the COVID-19 pandemic more broadly normalized telemedicine.
The average overall satisfaction score was 4.4 out of 5, with about 82% of respondents saying their virtual visit was as good as an in-person visit with a clinician.
In fact, more than half of the respondents agreed that their virtual visit was better than an in-person one.
When it came to engagement specifically, the vast majority of patients (nearly 93%) said their virtual visit clinician was interested in them as a person. About 95% said they had made a plan of action together with their provider to resolve their health concerns.
(Emphasis added)
More recently, it is my understanding that Court administration in Maricopa County reviewed data for mediations it scheduled through its Court Mediation service and found additional data supporting the conclusion that a larger number of mediations conducted through Zoom or similar platforms concluded successfully than those conducted through in-person mediation. I have not been able to obtain or discuss those findings with Court Administration but will update this article at such time as I obtain additional information about their data.
In conclusion, without reservation, I can share that my experience with Zoom mediation has left me thoroughly convinced that it facilitates and promotes resolution of cases. The litigants have the ability to choose the environment in which they will feel most secure, comfortable and at-ease. It has also made possible and facilitated participation in mediation with clients who are out-of-state. They converse with their counsel just as if they were sitting next to them, enjoying privacy, while in familiar surroundings and the comfort of their own home, if they chose. Rather than wrecking-havoc on the legal system or causing serious hardship, the opportunity to use technology such as video conferencing for mediation and Parenting Coordinator conferences has, instead, presented a welcome opportunity to more conveniently and cost-effectively help litigants in the court system find wonderful resolutions to their cases.