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JAMS ADR Insights

Mediation Business Interruption

The New Virtual Mediation Day

Virtual mediations present an opportunity for tremendous flexibility

Mediation has always been a process, not just an event. This process includes pre-session submissions to the mediator (and to all parties) and joint and/or individual pre-session calls. Historically, we have focused disproportionate attention on the single day when everybody gets together in the same room. Despite the fact that most parties spend most of their time on that day in separate rooms, we know that having everybody together can build momentum toward settlement that is hard to replicate in any other environment. Because of this, we spend a lot of time and effort to make that day happen. Part of the reason for the disproportionate focus on this part of the process is because it is often difficult to get everybody together at one time.

Virtual mediations present an opportunity for tremendous flexibility for those who are willing to consider breaking a full mediation day into separate pieces. Let’s consider a typical complex commercial case that ordinarily would be booked for one day to highlight the possibilities that result when it is spread it out a bit. First, let’s have the plaintiff give an opening statement. I know these have fallen out of favor, but they did so mainly because they got out of hand and created unneeded tension.  Once that happens, it’s difficult to get feathers unruffled and get parties refocused. With a time limit and some guidance from the mediator, plus the fact that there will be a break of a day or longer between this presentation and actual negotiations, these sessions can be very productive. One hour, one day.

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