Originally a skeptic of virtual mediation, L. Donald Prutzman, partner, Tannenbaum Helpern Syracuse & Hirschtritt LLP (US), has been converted. Reflecting on the pandemic, he said, “There wasn’t going to be a mediation if you didn’t do it virtually. Trying it changed my mind.”

And now, count Mr. Prutzman in as a fan of online dispute resolution. “It works very well,” he declared.

Mr. Prutzman was one of the speakers at Reading the Room Without Even Being in the Room—Online Dispute Resolution from the Mediator’s Perspective, which took place yesterday.

“At the start of the pandemic, most people thought it was going to be over in a couple of months. I had people say, rather than mediate virtually, let’s just wait until this is all over, and we can all get together,” he recalled. That passed when it became clear the pandemic wasn’t going to be over in a short period.”

Challenging Skepticism

Virtual mediation can provide compelling results, but some parties and mediators have been reluctant to engage in the process.

INTA’s “Panel of Trademark Mediators Benchmarking Survey,” conducted in September 2018, found that, of the 46 respondents, only eight had participated in virtual mediation. Of the eight, seven were involved in three or fewer mediations, while one was part of eight virtual mediations.

According to David K. Friedland, partner, Friedland Vining, P.A. (US), there were previously not many online mediation opportunities, even for the respondents who “are probably among the most active trademark mediators in the world.”

However, attitudes are changing. Mr. Friedland outlined the responses from a recent survey of several hundred practitioners, conducted in September by the Alternative Dispute Resolution section of The Florida Bar. Among the respondents, 96 percent said that virtual mediation was effective, and 82 percent reported that settlement rates in virtual proceedings were the same or higher than settlement rates for in-person mediations, he noted.

The respondents believed that the advantages of virtual mediation included saving time and money that would have been spent on preparation and traveling, and flexibility in terms of scheduling and process.

“Parties can save time and money by mediating virtually. I have had at least two recent mediations where one party was in Europe and the other in South America. The lawyers were in Miami,” said Mr. Friedland. The lawyers for both parties agreed that this route, rather than in-person mediation, had probably saved their respective clients US $100,000.

Kevin Hartley, chief executive officer of Trust Tree Legal, P.C. (US), and moderator of the panel session, shared his own experience, explaining that he became interested in virtual mediation and other approaches to mediation in December 2013, when his law firm was representing a client based in Italy in a patent dispute.

The opposing party was in Japan, and both sets of lawyers were based in Tennessee in the United States. The parties agreed to meet in New York City, and flew in T. John Ward, a former U.S. District Judge for the Eastern District of Texas, to mediate.

“We were making great progress toward the end of day, but the party from Japan had a flight home. They picked up and left, and the mediation ended without a resolution. It was one of the most disappointing days of my professional career,” Mr. Hartley said.

He added: “Ultimately the case did settle over the telephone. Judge Ward continued to call both parties to try to broker a settlement. Could we have just tried to do this on the phone to begin with?”

Psychological Tools

One of the many advantages of virtual mediation, said Mr. Friedland, is that you don’t have to sit in the same room as an adversary. Since parties do not physically spend any time with each other, there is less potential for vitriol.

While it can seem difficult to “read the room” if you are not actually in it, Mr. Prutzam is confident that mediators can still observe successfully.

“It’s true that you don’t see the hands, which can clue you into nervousness or points that are making the person uneasy, but you can often see it in their eyes or the way they react. You can’t use all the tricks you use when you see the whole person, but there’s enough,” he said.

Agreeing, Mr. Friedland said: “I don’t see the ‘reading the room’ issue any differently from how I saw it in my live mediations. It has become part of what we do as trademark litigators and trademark mediators.”

He added that he has found that parties seem to talk a lot more on virtual mediations, as opposed to face-to-face proceedings.

In his last three mediations, there were two instances when the party representative was not together with his lawyer and was much more talkative in terms of contributing his input, both in the open session and again in the caucus, even though he could clearly tell his lawyer did not want him speaking so much.

As such, Mr. Friedland said, “He was giving me more information in terms of his bottom line and ceiling—things that typically wouldn’t come out so quickly in mediation.”

One potential drawback of online mediation is videoconference fatigue.

Mr. Prutzam noted: “I don’t think Zoom fatigue is going to help a mediator bring about a settlement. It may result in one party losing interest and not being willing to stick to it for as long as it takes. It’s a minor drawback.”

An Eye on the Future

Turning to the future of mediation, Mr. Prutzman said that virtual mediation is “here to stay, at least to some degree and probably to a high degree.”

“The ability to use mediators from other regions who may bring something special to the mediation will add a lot,” he suggested.

Mr. Friedland said that although he has received requests for live mediation as soon as January 2022, his first inclination is going to be virtual mediation. Although there is no reason not to engage in in-person mediation, he said, “when time and money can be saved, which is what most litigants are concerned about, I think virtual mediation is the way to go.”

More than likely, in-person and virtual mediation will co-exist.

In Mr. Prutzman’s view, “There will once again be room for live mediation in a big city setting, but I think there’s going to be plenty more virtual mediation where people are spread out. Travel time for mediators and parties adds a lot of cost to the whole process.”

As for his own preference, Mr. Prutzman admitted that he missed in-person mediation and, when the circumstances are right, he will take it up again. But, he added, “Virtual mediation is in the toolkit, and I don’t think I would ever discourage it or tell parties not to try it.”

Mr. Hartley concluded: “Even skeptics have realized this can be an effective form of mediating. Although we were forced to adapt based on circumstances, it certainly seems that virtual mediation is here to stay.”

Video courtesy of Envato Elements / Василь Івасюк