[PODCAST] Reflecting on Nine Months of Virtual ADR

Nine months after the onset of the COVID-19 pandemic, the legal community overall has adapted to working in a new environment. For ADR professionals and many attorneys, that means mastering the art of virtual mediation. While some have experienced a more seamless transition than others, everyone had to confront often unexpected obstacles and turn them into opportunities to be successful.

In this podcast from JAMS, Adrienne Publicover and David Ross look back at their transition to virtual #mediation, their early experiences and challenges, and the opportunities that have arisen from virtual ADR.

They discuss how JAMS is leading the way when it comes to virtual ADR with its virtual ADR moderators, JAMS Institute virtual ADR training, and they also offer their perspective on the opportunities that have arisen from virtual mediation and discuss why they are confident it is here to stay.

Moderator: [00:00:00] Welcome to another special podcast from JAMS. Today, we're discussing virtual mediation. It's now been nine months since the onset of the global pandemic, which caused the number of virtual mediations to skyrocket. So we thought it'd be a good time for two seasoned JAMS mediators to reflect on their experiences with it.

With us are David Ross, who specializes in complex employment and commercial disputes, and Adrienne Publicover, who handles insurance, ERISA, employment, landlord, tenant, personal injury and healthcare disputes. So thanks both of you for being with us. David, let me start with you. You've been writing a really interesting blog series called Mind of the Master Mediator, examining the practices and psyches of six JAMS mediators. And you touch on the approach and views of virtual mediation. Overall, how would you characterize that view?

David Ross: [00:01:02] The Master Mediator blog was a brainchild of about a year ago when I thought it would be really intriguing and useful to talk with some of my colleagues who have a lot of experience handling a wide array of dispute. So I chose six neutrals in the New York office. I plan to do one for the West Coast at some point, and maybe Adrienne, you'll be one of my master mediators. And the focus has perhaps not surprisingly been on virtual mediations. In terms of general observations that they all share, the first is that at the beginning, it was really hard.

It was hard because like myself, all of my colleagues had been virtually only doing, in-person. Sorry for that pun, it wasn't meant to be. But 90%, probably more, were in person. And so to make the adjustment to having four people or 14 people or more on a screen was a challenge. But after four or five or six mediations, sometimes a little more than that, I was surprised that many of the mediators I spoke to, many of my colleagues, began to feel not just comfortable doing mediations virtually, but as, or more comfortable than doing them in person. And that was something that was unanticipated given all the anxiety and stress that came with the onset of a pandemic and the sudden hard pivot from actual to virtual.

Moderator: [00:02:27] And is that in line with your own experience, David?

David Ross: [00:02:29] Very much so. And my guess is with Adrienne's as well. I now have grown to love Zoom mediations and all the virtual mediations that JAMS runs.

I like them for a lot of reasons. One is that JAMS is really terrific at organizing and scheduling these mediations. They also offer specialists in technology, so if there are any little snafus like connectivity or difficulty accessing or anything else, there's someone there on the line or easily accessible that can help ensure the process runs smoothly. But I also like them because I have become, and I have found that my clients become very at ease and relaxed, not just because they're in a home setting, which actually helps, but seeing people on screen is not as complicated and as challenging and as emotionally distancing as I think we all may have anticipated going into this. We FaceTime, we Skype, we watch TV, so we're used to seeing people on television and we're used to seeing people on screens, interacting with them, not on TV, obviously. But the short answer is yes, my experience has been completely consistent with that of my colleagues.

Moderator: [00:03:31] Adrienne, you've done a lot of virtual mediations. How would you characterize the evolution of it, like the technology and the comfort level among parties?

Adrienne Publicover: [00:03:41] I had worked on the End Dispute platform. I had used Zoom in connection with Title IX sexual assault hearings at the various universities.

And I think the thing that JAMS added to the process was the concierge service, where the parties come in, they come into a waiting room, they're put into their respective breakout rooms, and then they're there in the background to the extent that we need them in order to step in to solve any technical challenges.

I have a distinct memory of spending a good bit of time those initial few weeks talking to the lawyers and getting them comfortable with the process. Very few people had done any sort of virtual mediation at all. And so I think there was a lot of mistrust. I think there was a lot of concern as to whether this would work.

I think there was a lot of, "Oh, well maybe we'll just wait and see, and things are going to open up and we'll wait, cause we really want to do this case live." And then when things didn't open up, people were like, "Okay, I'm ready to jump in."

Moderator: [00:04:42] And so now you've done a few of these virtual mediations since the pandemic. What are some of the most common challenges?

Adrienne Publicover: [00:04:48] I think in the beginning there were technical challenges, but I think some individuals did not have the bandwidth and by bandwidth, I really mean the actual technical internet strength in order to participate in the process. That seems to have resolved. I think everybody is up to speed now in terms of the technical requirements to run on Zoom.

Moderator: [00:05:09] David, same question to you. What have you seen in terms of challenges?

David Ross: [00:05:12] Well, I agree with everything Adrienne said with respect to some real concerns about the technology. I guess I would add to that a slightly deeper psychological and emotional piece, which is people often fear the unknown and lawyers who -- particularly successful, effective lawyers who have been practicing for many years -- have a certain way of doing business, a certain way of negotiating, a certain way of litigating, a certain way of mediating and change may come harder to that particular culture. I won't say for every lawyer and I don't mean to over-generalize, but that is an experience I had with lawyers who I know and work with and mediate with, they have confided that to me, just that fear of the unknown, and there was a real comfort level with their past experiences.

So getting past that emotional hurdle, that psychological hurdle, doing their first Zoom or virtual mediation to JAMS, that was a very high hurdle for a lot of successful, sophisticated people.

Moderator: [00:06:05] So now that you've been doing a lot of these virtual mediations, have you developed any pet peeves, David?

David Ross: [00:06:10] So I'll share some that are for virtual and some that are for in-person because I think eventually we'll go back to some in person, probably a lot of in-person. The first is not having your tech up to speed and up to date. So at this point, people should know that it's important to have the latest platform, to have the highest internet speed they can get, and that will prevent there from being the connectivity and other issues and bandwidth issues that Adrienne mentioned earlier. So that is one pet peeve. A second pet peeve, and I'll just say it, I don't like virtual backgrounds. There are a lot of reasons for that. People, I think early on, got used to sort of the novelty of being able to have a waterfall or a picture of a lion or a beach behind you. But I feel like that time has come and gone, and mediators and folks on the other side of the table, all the lawyers and clients, I think really appreciate when participants in mediation take the time to organize and curate a natural, or actual background.

It also provides a real sense of human connection. Some personality can be part of the process that way, and it can spark conversations. When you see something in the background, it helps to ease the tension. And that's important for me because a lot of the cases that I handle in the employment arena when there's sexual harassment and discrimination cases, involve issues of high sensitivity and strong emotion.

So I'm not suggesting that using an actual well-organized, curated, actual background is something that dissipates all of that tension and then the challenges that those cases present, but it can ease it. And that can go a long way.

Moderator: [00:07:40] Adrienne, do you want to jump in with your pet peeves and takes on backgrounds?

Adrienne Publicover: [00:07:44] I completely agree with David. I think you need a very fast computer to effectively run a background or otherwise the humans end up quite pixelated. And I do, I find it very distracting. And I also think working from home has really sort of leveled the playing field, and I agree with David that that personal connection of having that environment and space is part of the process.

The kids walk in, the dog starts barking when the Amazon delivery comes, we're all sort of intertwined within the fabric of life of each other. And I think it's actually been a really nice part of the pandemic.

Moderator: [00:08:26] You both have conducted a lot of mediations in person and seen a lot of lawyers in action in those mediations. So I'm wondering, have you seen any of those lawyers make adjustments to their presentation style in the virtual setting?

David Ross: [00:08:39] That's a great question. I would say some are and some aren't. And I would say the some that are are more effective advocates and probably better lawyers outside the mediation room and in every other capacity of their work.

That is the short answer. I don't think everyone is. I still have lawyers who show up with kind of weird virtual backgrounds and their head disappears for a few moments or their hand disappears. And it's just very disconcerting and disruptive to the process because it's hard to make your points and be clear and articulate and persuasive when you can't see your head. It's not a good way to advocate, but there are many lawyers who now have well-organized curated, actual backgrounds. There are lawyers who have learned how to position themselves properly in front of the Zoom camera so that they're in the foreground, but they're not leaning in so all you see is their forehead. Positioning yourself properly I think is really important. And all the other tech issues that Adrienne mentioned earlier, people are beginning to master those.

Moderator: [00:09:34] Yeah. I would imagine that those types of adjustments, those sort of technical adjustments are crucial, Adrienne, including maybe even lighting. I mean, suffices to say sometimes appearances do matter, right?

Adrienne Publicover: [00:09:43] Yes, absolutely. I think, you know, there's a lot of information on the internet. Two things are number one, having your computer at the right height so that you're not looking down and displaying being sort of forehead forward as David was talking about. And yeah, the lighting, my kids laugh and say I'm like a TikTok star because I have one of those selfie rings behind my computer, but it makes a big difference. Shadows are not good, and you really don't want your mediator in the shadows.

David Ross: [00:10:14] Yeah, if I could just add to that, I agree with everything Adrienne is saying. How you look and how you present is an important piece of the persuasion puzzle. There's actually been some research on something called the beauty bias, which shows that people who present in a more attractive way -- I don't mean classic physical, attractive looks -- but just presentable and have taken the time to look as though they care about being seen by the people on their virtual mediation, in any context. That can be persuasive in and of itself. It shows an attention to detail and shows you care about yourself and others. So avoiding backlighting is another tip. I also agree with Adrienne, invest in the dimmable ring light. It doesn't cost that much. It really adds a lot of value taking those shadows out. And the camera level point Adrienne made I also agree with because if your camera angle is below or above, it can be very distorting and distracting to the people that are trying to look at you and listen to you.

Moderator: [00:11:08] Technology obviously can be used to enhance an argument, but it also can distract. What do you think advocates should keep in mind when considering how to use technology like screen sharing?

Adrienne Publicover: [00:11:20] The one thing about virtual mediations is I think they need to be a little more choreographed than an in-person mediation. In person mediations can free-flow and are a little more spontaneous. With virtual, everyone wants to know what's going to happen and have sort of a roadmap of what at least the morning is going to look like. And so I think in terms of technology, probably most frequent is screen-share for documents. We use that quite a bit, but I do like to plan that out in advance to the extent that the lawyers are willing to share those documents in advance, so it's not just screen-share, but everybody actually has their own working copy of those documents. I think it's more effective, and that takes some planning and coordination on the front end.

Moderator: [00:12:09] And David, do you want to add anything to that?

David Ross: [00:12:10] Just briefly, I agree with Adrienne, as I seem to be agreeing on everything she has said so far, so let's say good sign we're either both right or we're both wrong, hopefully the former. Sharing the screen can be a very effective tool for the virtual mediation advocate. I had a case recently where the defense lawyer brought up an email and had highlighted the email. She made it clear that that was not part of the original email, and it was a very timely sharing of the email and not surprisingly, it was one that was very helpful to her case and highly relevant and had a real impact on the other side.

I will share a very quick story about another lawyer on the plaintiff's side, actually, who started the mediation, and there was something about her voice that was very clear and very strong, and the opposing counsel was concerned about it because her microphone and headphones and whatever technology she was using was so high tech that she sounded clearer and louder and better than anybody else. And we had to take a pause and deal with that issue. So it was an interesting moment.

Moderator: [00:13:11] And I want to know whether or not you sense that lawyers have a harder time reading you and others on video conference, and what are the consequences of that?

David Ross: [00:13:21] That's a good question that really raises the broader issue of how easy or how hard it is to read what I call upper body language.

That's in one of my blog posts on body language because obviously all you have on virtual mediations is from the waist up or from the midsection up. So the short answer for me is that there is enough upper body language information to read people accurately and well.

I can't speak for the lawyers and for the clients, but as a mediator, and I think Adrienne will agree with this, being able to not just understand the content of the word being used by a plaintiff or defendant or his or her lawyer, but being able to read the body language because most information actually comes from body language, as opposed to the actual words being used, is crucially important.

And in my blog, I talked to all the master mediators, and they agree there's enough information. In the end, the face speaks the most, so eyes, mouth, changing posture, all of those clues are very useful to us as neutrals, trying to figure out what's really important to a client. It also helps us to connect with lawyers and their clients at the human level because there's the practical piece of understanding the content and what's really important to people. And then there's the other piece of it, which is relating to individuals who are part of the process, making them feel comfortable, building trust and credibility, and all of that can happen through Zoom mediations.

I would say that with multi-party cases when there are 10 or 12 or 14 people, it gets a little more challenging because the boxes are smaller and it's harder to see people's body language and facial language.

Moderator: [00:14:58] What about emotions? Do virtual mediations have any effect on emotions more than in-person proceedings, Adrienne? I assume you can feel the emotion in some of these cases in the room. Do you feel the same in a virtual proceeding?

Adrienne Publicover: [00:15:11] To be perfectly honest, I would say it is a little bit different. A lot of my cases tend to be highly emotionally charged, single plaintiff employment and disability, and I think you have to pay special attention in the beginning as the mediator in trying to create a rapport and develop a relationship with that individual and to develop some trust. And I think it takes a little bit longer. And I think that is part of the process, part of being able to try and read people's emotions is doing that groundwork at the beginning of the session.

David Ross: [00:15:52] I agree, and I would just add that something that I have been doing in the types of cases that Adrienne's referring to -- these emotional, identity-driven employment discrimination and sexual harassment type cases -- is front-loading the process.

And what I mean by that is I, now, unlike during actual in-person mediations, schedule Zoom calls with the lawyers and their clients before the mediation session. So I'll have not just a conference call, I'm going to have a follow-up call on Zoom with the clients.

And I recently had a case where a woman had been fired. She had been the head of a major division of a big company, and she told me as we were talking that she was trembling as we spoke because she was remembering the moment she had been terminated and the pain that came along with that and the suddenness of that termination. And I think a big reason that that case ended up settling was that, as Adrienne said, I was able to build some trust, some emotional connection with this person. And she also had an opportunity to express the emotion a couple of days before the actual mediation session.

Adrienne Publicover: [00:17:01] Yeah, I've done that as well. I think it's very effective, and I think it's really important for those types of cases in a virtual environment.

Moderator: [00:17:08] Both of you suggest, and I don't want to put words in your mouth, that virtual mediation is here to stay even after we have widespread distribution of a vaccine. Is that right, David?

David Ross: [00:17:19] Yes, I'm certain of it. I'm not a betting person. Obviously I hate risk because I mediate, so I like to resolve conflicts. And when I talk to clients about the risk of going to trial, it comes from the heart because risk isn't a lot of fun when there's high consequence, but I feel very, very comfortable with saying that virtual mediations are here to stay.

There are a couple of reasons for that, in my opinion. The first is that clients generally like it. Once they get over the initial psychological, emotional, and fear of technology hurdles, when they try it, they generally like it. And they like the process because JAMS neutrals have been trained how to use the technology from the JAMS business and administrative staff. So in a case of settlement, so that's the second reason is that there really seems to be, certainly with my practice and the colleagues that I speak to, a comparable settlement rate, and they're mediating to try to settle their cases. So that's important.

There are no travel or travel-related costs, so there's no real friction, and there's a real efficiency to it, and clients like that a lot. And you have to look at the alternative, at least for now, the alternative is being in-person with masks on and six feet apart. And that's just not an optimal setting for an eight or 10 hour mediation session.

Adrienne Publicover: [00:18:26] I completely agree. I have mediated a few cases in masks, and it's really hard to try and make an emotional connection when you don't have the lower half of your face engaged. Some of our offices, and I think Orange County is one that comes to mind, I think New York, similarly, where there are large conference rooms, I think those can be useful in hybrid situations because I do think moving forward, some lawyers just have a really strong personal preference for in-person. They think that they're more effective, but even in those situations, I think the cases will be hybrid and we'll have perhaps a mediator with the two lawyers or the lawyers on both sides in person with clients on Zoom. I've done those cases as well, and those work well.

Moderator: [00:19:19] So it's clear you both have a lot of experience with virtual mediation. Is there an experience though from this year that you'll always remember, David?

David Ross: [00:19:27] I have a memory. It was traumatic. I'm going to share as part of the healing process.

It was my first virtual mediation, and I will be very candid. I was very nervous, and terrified might be too strong, but I was very, very nervous because like all JAMS neutrals, we care a lot about settling the cases, we're very professional, but when we don't settle a case, it doesn't feel good. We're comfortable with the process that we've mastered doing them in the JAMS offices or lawyers' offices.

So in any event, in the first mediation virtually, I log on and I'm having trouble logging on. I finally get on and turns out that two of the six participants had connectivity issues and that was a problem.

The general counsel for the defendant who was a key player and had really all the settlement authority was in a different Zoom mediation with a different mediator, from a different office, not the New York office. So I'm freaking out, I'm not really showing it although I was sweating. There's a happy end to the story. The case ended up settling, JAMS swooped in and resolved the connectivity issues and got the general counsel in the right room. This was very early on, so it's mid-March and the pandemic had just hit, and ironically, and it was sort of a sweet irony. It ended up being a way of connecting with all the people in the process.

And frankly, for them connecting with each other, as we sort of laughed about the general counsel being in the wrong room, and maybe he was doing it on purpose, of course he wasn't. So that was my traumatic with a very small T and very memorable experience.

Adrienne Publicover: [00:21:00] David, that was a great story. I think about this question maybe in a broader way and the evolution that we have sort of experienced this year in terms of an entire new way of approaching ADR.

We went from this major disruption to a pivot to an entirely new paradigm in terms of the way we think about dispute resolution. So for me, I think 2020 will always be about the year that we made lemonade out of lemons. At least from an ADR perspective.

We started in March with this major disruption in California. We went shelter in place on March 16th. And for me for the practice that I had been steadily building, I was initially concerned that it was going to grind to a halt, and I think our clients and the parties felt the same way about their legal cases. It became pretty clear early on that this was going to last much longer than anticipated, so then it became about the pivot, and I knew from mediating a large group of cases by phone, from using End Dispute and Zoom and from prior proceedings, that a virtual platform could work. And we as neutrals were supported by JAMS as the organization quickly retooled, taking all of our folks that were manning our front desks and turning them into facilitators to help provide concierge services with the Zoom platform.

And I remember in those initial weeks, talking to clients, doing webinars on virtual mediation, we did practice sessions for cases that were on calendar, essentially trying to convince folks that it would work, really making sure that everyone was comfortable and being brought along in the process. And what came out of that is a new paradigm.

Virtual mediation, virtual ADR, is here to stay in one form or another. Having done more than a hundred cases since this started in March, we know that it works. We know that people love it. And I think the other part of it is there are no longer really any borders. You don't have to get on a plane to mediate a case across the country.

I've helped individuals and parties resolve cases from Maine all the way to Hawaii and about 15 to 20 states in between, so if the parties want a mediator with a particular expertise -- so for me, it's ERISA, healthcare, insurance -- they have the ability and the freedom to work with whoever they want.

So I think from an ADR perspective, we took what seemed to be some insurmountable obstacles and turned them into opportunities. I think everyone's going to benefit from that.

Moderator: [00:23:45] Well, thank you both for those stories and for a very insightful conversation. You've been listening to a special podcast from JAMS, the world's largest private alternative dispute resolution provider.

Our guests have been David Ross in New York and Adrienne Publicover in San Francisco. For more information about JAMS, please visit www.jamsadr.com.