Starting the conversation here, please join me: What Does the "New Normal" Look Like for ADR?

"Two things can be true." Shannon Sharpe

We are returning at some point soon to the physical office. Some of us are ecstatic; others are terrified. I think most of us are a bit of both. Dealing with this transition presents a challenge as well as a great opportunity for mediators to model creative leadership. How do we hold mediation sessions that are inclusive and equitable when people are in such different circumstances and in such different mindsets after a year at home? What does the "new normal" look like for ADR?

Shortly before the CDC announced that fully vaccinated persons could gather safely indoors without masks, I conducted a survey of my clients, asking (among other things) (1) what steps could BarrADR take to make people feel more comfortable about gathering in person and (2) would attorneys continue to use video conferencing platforms (in my case, Zoom) for ADR after restrictions are lifted.

As my friend Darren A. Lee, Executive Director of the National Academy of Distinguished Neutrals, said, "The Zoom genie is not returning to the bottle." Of the responding participants in my survey, only 10% waned to abandon the use of Zoom; the remainder were either in favor of using Zoom sometimes (70%) or undecided (20%). Of the 70%, the majority said they would prefer to attend between 50 and 100% online. Factors the attorneys considered significant included familiarity with opposing counsel, likelihood (or unlikelihood) of settlement, client preference, client location, and the magnitude and complexity of the case (e.g., smaller cases can reduce costs by meeting online).

Many respondents appreciated the convenience and efficiency of Zoom ADR, particularly where some parties were out of town. Some attorneys liked being in their offices, where they could work on other matters in the downtime. Litigants liked dealing with the opposing parties from the comfort and privacy of home. I think universally people feel quite comfortable with the technology now, including the litigants.

Others felt that Zoom lacked the immediacy and urgency of gathering in person. One commented, " The nuances of in-person communication can't be replaced. " Another said, "I think both sides feels less pressure to settle when it’s remote because it feels like less of an investment."

In terms of increasing the comfort of participants for in person gathering, the comments were predictable (based on my read of preexisting public polls): "statewide vaccination rate of 50%," "obtain assurances from participants about their vaccine status, " "end of Summer/Fall 2021," "even when it is safe, I will likely prefer at least the option of appearing virtually. I can see little value in most cases of appearing in person," "I am fine with in person provided that social distancing and masks are used," "I feel safe enough now, but many of my corporate clients are not allowed to travel until July 2021 or later," and "I have felt safe for a long time, now."

Trying to reconcile the cost savings and convenience of Zoom with the immediacy and urgency of in person, I am doing my best to develop thoughtful interim policies, pending the "herd immunity" or "all clear" for immunocompromised folks or those who live with unvaccinated folks, like their children. Here's my tentative plan, subject to your feedback and conversations with respected colleagues.

From now through mid June, I plan to continue to use Zoom.

Commencing June 15 through Labor Day, I will solicit the setting party's preference on the online setting form. When my office confirms and sends notice of case setting, we will ask all parties about their preferences. If all the participants choose Zoom, we will proceed on Zoom. If all choose in person, we will meet in person. If there is a split, we will likely default to Zoom; however, if possible, we will combine live and Zoom.

I will make decisions on a case-by-case basis, after consultation with counsel. I will also consider the factors outlined above.

If we do gather in person, I will institute the following policies:

(1)     Attendees will be asked to verify their vaccination status.

(2)     For now, all participants will be scanned for temperatures above normal.

(3)     Unvaccinated attendees will be requested to wear masks, which will be available on site for those who need them.

Let's start a conversation: what do you think about this plan and how will you navigate this moment of change and uncertainty?