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Mediation Virtual & Remote ADR Arbitration

And Just Like That… I Mediated in Person: My Journey Back to the Office

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Last week, I mediated a case in person for the first time in 23 months. I loved it. It was incredibly liberating to walk through the halls and knock on doors, to make eye contact with and observe the body language of others without having to do so through a screen. Although my virtual mediations have been extremely successful, I hadn’t realized how much I missed mediating in person.

This particular mediation was originally planned to be virtual. It had been scheduled weeks earlier, when Omicron case counts were still high and in-person proceedings were not advisable. But a few days before the case, when I was speaking with one of the attorneys in a pre-mediation call, he mentioned that he had participated in an in-person mediation and that it was a good experience. I knew that COVID case counts were dropping rapidly in New York City. So I asked if he would consider having this case heard in person, and he responded with an enthusiastic yes. I quickly reached out to the other side, and the attorney agreed to proceed in person. I contacted my case manager to make sure that JAMS could support an in-person case, and within minutes, it was scheduled.

But then I began to think about the precautions we would need to take. Because JAMS has a policy that requires all in-person participants to provide proof of vaccination, I didn’t have to ask about vaccination status. I am fully vaccinated and boosted, so I felt safe proceeding in person.

What about masks? At the time, masks were required in the common areas of the office per New York City regulations, and the JAMS New York Resolution Center’s policy continues to mandate that masks be worn in those areas. Mediating in a mask all day felt difficult to me. When I mentioned this to my kids, they were a bit indignant and said, “Mom, we’ve been wearing masks all day at school since last year, and you don’t want wear one for one day?”

But declining case numbers and the availability of rapid antigen tests have changed things. Unlike in December and January, when Omicron was surging and rapid tests were almost impossible to find, they are now readily available in most pharmacies. I decided that if all participants took a rapid test the evening before or morning of the mediation, and everyone tested negative, I would probably feel comfortable mediating without masks in the conference rooms. I reached out to the attorneys, and they and their clients agreed to take rapid tests.

Now that COVID precautions had been addressed, I had to think about how to prepare for my first in-person case in almost two years. Would my preparations change? I didn’t have to collect cell phone numbers to text between caucus sessions or make sure everyone had access to a computer with a camera and knew how to use Zoom. In that sense, preparing was easier. But my own anxiety about the case was different. I am nervous before every case, especially if I sense that any of the attorneys or clients have difficult personalities or tough negotiating styles, or if the issues are particularly contentious. Here, although the attorneys in this case seemed pleasant and easygoing, I knew that this mediation was going to be tough; two sides were extremely far apart, more so than is usual. Neither side was optimistic about settlement. I was nervous about mediating in person and worried that I had forgotten how to do it. So I decided not to put too much pressure on myself and just focus on re-honing my in-person skills.

It turned out to be an effective strategy. Because I went into the mediation without unrealistic expectations, I was able to relax and enjoy the “novelty” of mediating in person. It gave me something to connect over with the attorneys and their clients, and it lifted everyone’s mood. During the initial lengthy caucuses, when I was working hard to actively listen and focus on details and chronology, I had to resist grinning from the extreme joy I felt just from being across the table from actual human beings.

As expected, the initial sessions did not produce much movement from either side. The plaintiff was holding to an unreasonably high number, but the offers from the defendant were too low for me to encourage significant movement from the plaintiff. Finally, after fleshing out a factual issue that was unhelpful to the defendant’s position, I got the defendant to make a better-than-expected offer. This helped me see a zone for settlement that was higher than the defendant anticipated. Because I felt more relaxed about the case in general, I was able to be more open and direct with the parties. I ended up making a mediator’s proposal at the end of the session that was accepted by both sides within a few days.

So what did I do about masks? When I arrived in the conference room for the initial joint session, everyone was masked. I confirmed that everyone had taken a rapid test before the mediation and that all tests came back negative. Because JAMS mediators are allowed to manage mask usage in conference rooms, I told the participants that I would be comfortable proceeding without masks if they were. Everyone agreed, so we removed our masks and maintained a good amount of distance between us. I didn’t know whether or not I would feel comfortable mediating without masks until I arrived in the conference room. But the next time I mediate in person, I will tell the parties ahead of time that if they take a rapid test the morning of the mediation or the night before, and the results are negative, then we can proceed without masks.

The past two months have felt like whiplash. Before Omicron, case numbers were going down, and I was starting to venture out in the world, seeing friends and attending events. Omicron felt like a train wreck, or like a giant pause button had been pressed. Suddenly, it seemed like almost everyone I knew had someone with COVID in their family and their holiday plans were upended. Events were canceled, and my kids briefly returned to remote learning. For me, January 2022 was the hardest month of the entire pandemic, and I had accepted that virtual mediations would remain the new normal. And then Omicron retreated as fast as it arrived. It’s been hard to manage anxiety, expectations and comfort levels in a constantly shifting environment. But we are hopefully moving toward a more stable new normal, where more proceedings will be held in person, although some will remain virtual. Our challenge as neutrals is to be able to do both.

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