The pandemic has changed the way we live, work, and play.

Many courtrooms are physically closing their doors in a bid to keep the community safe, which is changing how we resolve conflict. There is no doubt that mediation can be an effective tool for settling claims. However, until recently, online mediation was often discounted on the grounds that discourse via video conference was not as effective as a face-to-face discussion. Although this may be true in some respects, the current environment has proven that online mediation can also work effectively.

What is the biggest challenge for mediation post-pandemic?

The most obvious change in mediations since the start of the pandemic has been the shift to digital mediation via virtual platforms. However, the seismic shift to technology prompted by COVID-19 has had the greatest impact on the pre-trial or pre-mediation space.

With technology comes new challenges and layers of complexity for mediation engagements, such as briefing and questioning witnesses, gathering appropriate information, statements, and evidence, and clearly understanding the plaintiff’s position. These interactions are all easier when standing in front of a person and you can see their face, hear their voice, and understand their attitude, body language, and demeanor.

Despite the obvious challenges in the current environment, can mediation still be effective in resolving disputes?

As with many other aspects of our lives today, we have turned to virtual mediation sessions, which can be just as effective as in-person methods when leveraged with the right tactics.

When it comes to engaging with witnesses, having enough time is vital. You’ll need sufficient time to build rapport within the bounds of a virtual setting, take witnesses through deposition questions again, and again, and again, and ensure all bases are covered to avoid surprises. Ms. Siebert will speak on this topic during the Claims & Litigation Management Alliance (CLM) Annual Conference on March 25, offering tips on how to develop and implement a strategy to help optimize settlement negotiations and claim outcomes.

The selection of a mediator is another key factor that can play a big role in the outcome of your case when it is managed virtually. The same practices apply here—select a mediator with whom you have previously had a positive working relationship, or at the very least, one who knows you as a professional.

Having a plan of action and following it is critical to successful negotiations. To ensure things run smoothly, you need to communicate plans clearly with the risk manager, carrier team, and defense lawyer more than ever before.

Are there any situations where online mediation is preferable over in-person mediation?

In many common personal injury claims such as automobile collisions, “slip and falls”, general liability claims, or workers’ compensation matters, mediation often focuses on the parties agreeing on an acceptable settlement. That is not to say that discussions are simplistic or that there aren’t other issues that need to be addressed; however, these are often secondary to the parties’ ultimate financial stance and involve less emotion than, say, a divorce or contentious commercial dispute.

Accordingly, because these claims are typically two or three-party disputes, the online environment allows for very effective discussions, making an online mediation relatively simple to navigate. In fact, reports indicate that settlement rates have remained consistent throughout the pandemic, despite mediation moving almost exclusively online.

The option of online mediation also opens the door to retaining mediators with a more diverse background and the ability to be more efficient because they and counsel are not spending time traveling.

Find out more

Gallagher Bassett is boosting efforts (such as online mediation) to maximize alternate dispute resolution strategies designed to achieve superior outcomes for clients and prevent files from languishing due to closed or backlogged courtrooms. Contact our team today for a confidential chat about your claim and how we can help.

Blog Author

Caryn Siebert

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