Mediation Can (And Must) Embrace Social Distancing

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By: Donald L Swanson

Social distancing is demanded of us all.

That creates a new and huge problem for our courts: distancing demands that depositions be postponed, that trials be continued, etc.  The result: justice is denied by delay.

Mediation can . . . and must . . . come to the rescue.  It’s our duty.  What that means is this: mediations must continue apace, so that disputing parties can achieve prompt justice for themselves.

But to do so, we must adapt.  The ideal of face-to-face mediation is now inoperative, olde, obsolete. And waiting for social closeness to return, so that face-to-face mediations can resume, is the wrong way.  The need is much too urgent!  Mediation must adapt now and embrace the distancing.   

The purpose of this article is to provide encouragement that mediating with social distance can and will work . . . and work well, provided we are willing to adapt.

Social Distance Mediation

Zoom, of course, provides a new way.  And by now, nearly everyone has used it.  [Note: In a very little while, this Zoom reference is likely to be outdated as well.]

Here’s encouragement that mediating with social distance will work.  Less than a year ago, I’m fretting over two upcoming mediations.  That’s because, in each, one side will need to participate by telephone.  I’d never mediated like that before, and it seemed like a scary thing: I doubted it would work.  But I was wrong.  It worked like a charm both times.  The telephone component even added an advantage (I’ll explain below).

An Adaptation: Joint Session

Mediation norms need to adapt to make social distance mediation work.

One such adaptation is this: moving toward joint sessions and away from shuttle diplomacy (it’s hard to twist arms by phone or Zoom).

In this adaptation, mediators will need to be:

  • less like Henry Kissinger (i.e., shuttle diplomat) and more like the chair of a deliberative group; and
  • less of an arm twister and more of an enabler of clear understanding and direct negotiations.

And the joint session adaptation is especially needed for bankruptcy reorganization disputes. Such disputes have always been better-suited for joint session than shuttle diplomacy.  That’s because they typically involve large amounts of data (budgets, cash flows, valuations, amortizations, past expenditures, projections, etc.) and arise under intense time pressures.  Cash collateral and plan confirmation disputes are two examples.

Such disputes typically involve misunderstandings, disagreements and distrust over the  accuracy and meaning of data.

So, when disputing parties discuss their data disagreements and misunderstandings directly (with a mediator’s assistance), the parties have a best-possible chance for reaching a common understanding of the data; which, in turn, creates trust and provides a best-possible opportunity for settlement.  And that’s precisely what happened in both my telephone mediations.

By contrast, a mediator bopping back-and-forth between parties-in-caucus cannot come anywhere close to breaking through those misunderstandings and disagreements or achieving common understandings: so, distrust continues as an impediment to settlement.

Stumbling Upon Distance Mediation

I stumbled upon the two mediation-with-telephone opportunities mentioned above because of distance realities.  It happened like this:

  • Nebraska covers a large expanse—its 77,421 square miles (430 miles long and 210 miles tall, with irregular lines) are about the same size as the combined territories of Rhode Island (1,034 sq. mi.), Delaware (1,955 sq. mi.), Connecticut (4,845 sq. mi.), New Jersey (7,419 sq. mi.), Massachusetts (7,838 sq. mi.), New Hampshire (8,969 sq. mi.), Vermont (9,249 sq. mi.), Maryland (9,775 sq. mi.) and West Virginia (24,087 sq. mi.); so
  • Disputing parties, their attorneys and the mediator can be hundreds of miles apart;
  • In both cases, disputing parties want to mediate, but the distance for one party is prohibitive; so
  • The accommodation everyone agrees upon is to have one party, its attorney and the mediator in one office together, while the other party and its attorney participate by telephone.

As we all embark upon my first-ever telephone mediations, I have misgivings because:

  • some mediation trainers say that in-person participation is essential; and
  • some judges won’t authorize a mediation-by-telephone.

On the positive side, however, I know that mediators for the U.S circuit courts of appeals do mediations by telephone frequently; and I know of a mediator who handles highest-level disputes exclusively by telephone. So, I figure, if it’s good enough for them, surely it’s good enough for me.

I ultimately decide to proceed with the telephone mediations based on the following adages:

  • we have to make-do with what’s available;
  • when we assume something won’t work, we are probably wrong; and
  • we never know until we try.

These adages are applicable to our new distancing reality as well.

The Combination Works Well

And guess what: the combined telephone and joint session process worked well in both mediations. That combination produced common understandings; and it resulted in settlements of issues involving complex and convoluted data.

Additionally, there is a positive distancing-effect I did not foresee. I’ll try to explain:

  • The very idea of spending a morning or day in the same conference room with an adversary, chatting about disputed details, creates something akin to anticipation of gloom, agony and despair for many parties and their attorneys;
  • The reality I’ve experienced, however, is that joint session mediations rarely produce the tortured effects that parties dread—in actuality, parties are often glad (in the moment) for the opportunity to discuss disputed details and clarify the truth; and
  • What the telephone component adds is a bit of welcome distance between the disputing parties in joint session, without diminishing the effectiveness of the joint session.

And if telephone worked well, surely Zoom will be even better!

Conclusion

Mediation must not merely adjust to the new distancing demands: it must embrace and satisfy those demands!  Mediation by telephone is a proven means of doing so.  And Zoom should work even better.  But we will need to make adaptations, like mediating in joint session, instead of caucus-only.

We must embrace social distancing, so that mediation can meet the need for prompt justice!

** If you’d like to discuss efforts to embrace social distancing in mediation, please call me at 402-343-3726.

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