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Omicron and the Ongoing Pandemic: Accepting the Virtual Future of ADR

Mediating from Home and Avoiding Burnout
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When I started conducting mediations and arbitrations on Zoom almost two years ago, I could not have imagined that I would still be doing so today and that my practice and the alternative dispute resolution (ADR) field would be so fundamentally altered. In March 2020, I was thrilled to be able to mediate on Zoom and other videoconferencing platforms. When the pandemic first hit and the cancellations and adjournment requests piled up, I started to panic. Thankfully, my first virtual mediation went very smoothly. Almost a year later, having become adept at virtual mediation, I shared tips and techniques for successful virtual mediations. But I always figured I’d return to in-person mediations eventually. September 2021? The Delta variant changed that. January 2022? Now Omicron is here.

Right now, it’s unclear to what extent Omicron will impact the return to in-person proceedings. Although some mediations and arbitrations have been taking place in person, Omicron, which is more contagious than Delta, is likely to slow the return. More information is needed, particularly regarding Omicron’s ability to evade the protection of vaccines.

My two children are both fully vaccinated, and I received a booster shot, maximizing our protection. Despite Omicron, I am cautiously planning to conduct in-person cases in 2022. However, I expect that some or maybe even all of those cases will convert to virtual sessions.

Whatever Omicron’s impact will be, the way ADR is practiced has changed. Virtual mediation and arbitration are not just short-term solutions necessitated by the pandemic; they are the new reality for ADR. The vast majority of lawyers in my cases have not attended any in-person mediations since the pandemic began, and most don’t miss them. They can get other work done when not meeting with the mediator, it’s often easier for the clients, and insurance carriers are more likely to attend. Arbitrations are also efficient and effective when conducted via videoconference.

This shift has wide-ranging implications for both ADR practitioners and clients. The first phase of the pandemic required us to adapt our practices to the virtual modality. But virtual ADR was never meant to be a long-term solution. Although sitting in front of a screen at home for many hours every day now feels normal, it also serves as a reminder of the trauma and upheaval caused by the pandemic. Recognizing that our field has been transformed can help us move from a place of crisis to a place of empathy and acceptance.

During the next phase of the pandemic, where vaccines are abundant but variants such as Omicron continue to arise, my hope is that as ADR practitioners, we can take a collective breath, acknowledge our own traumas and those of our clients, and think about how to make this strange new world sustainable. The pitfalls of working and interacting virtually for an extended period remain significant. Zoom fatigue is real. Burnout remains a risk. How can we remain compassionate, empathetic and effective as neutrals if we are burned out?

For now, I am accepting that my workplace is my home office and embracing my wardrobe of tops. I didn’t think when I left the office after my last in-person mediation in March 2020 that I would not return; no one could have imagined then how much the pandemic would alter our world. But I am beyond grateful that my kids have returned to school and that their routines have returned to something close to normal, even if my own routine has stayed the same.

Self-care used to be an aspiration, but now, more than ever, it is an imperative. Even seemingly little things, like making sure to spend time outside, need to be factored into our routines. I am thankful for our pandemic puppy (now fully grown) because her morning walks are sometimes my only chance to leave the house, especially on long mediation days. Finding time to connect with friends, family and colleagues in person is also essential for me to counteract the time I spend on Zoom. Going to the office (now known as “working from work”) once a week helps me stay in touch and breaks up the monotony. Exercise, including Zoom yoga and Pilates, is critical for my mental and physical health after sitting in my home office for so many hours. Finally, setting boundaries at work and knowing when to take breaks—and not feeling guilty about it—have helped me maintain a sense of control and balance.

It no longer makes sense to target a specific date to return to in-person sessions. Maybe I will have some in-person sessions in 2022, and maybe I won’t. Regardless, virtual ADR will remain an integral part of our practices, and it is critical that we accept and adapt to this new reality.

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