“Alternative dispute resolution (ADR) over Zoom can be a more effective and efficient way to avoid going to trial and controling litigation spend over in-person ADR,” says Clarence Easterday, Executive Advisor, Risk Management, Western Express.

Easterday is a speaker at the marcus evans Chief Litigation Officer Summit September 2021.

How did the pandemic change the ADR process? 

We moved from in-person mediations, very human interactions, to the world of Zoom and other communication platforms. Initially, I thought the change would be terrible, but it actually made certain situations a lot more efficient. If you control the flow and make sure you have the appropriate interactions, it can be almost as effective as in-person in giving you the ability to convey feelings and learn about the other party. A mediator I know spends ten minutes at every mediation sharing some personal information about himself. I never saw that before the pandemic! He finds that approach helpful for bridging the technological gap and making sure we are still people in the process.

Zoom is less intimidating for some people. I have done many mediations on Zoom and not a single adversary refused to appear. In some parts of the country, you never see a claimant. For example, in New York you seldom meet the other party unless you specifically request it. This means that with Zoom you have more opportunities to interact with the other party and to lessen the impact. We have a very high rate of settlement, and it is because we involve ourselves in the process, and appear as humans interacting with other humans.

How does this impact CLOs? What changes in processes or strategies should they make? Should they continue with online mediation after the pandemic?

First, you have to back up a little and decide what your approach is regardless of the pandemic. Many companies do not realize the value in the ADR process for a range of situations. They believe that with ADR the impact on the bottom line will not be great, but I strongly disagree with that. We have small claims and multi-million dollar claims, and apart from the most catastrophic five percent, we approach all of them the same way. That is, human interaction, involvement by the company, and ensuring we are active in the entire process. After the pandemic, you almost have to embrace a conflict resolution process to understand what you do. Much like working from home, there will be more mediations done via Zoom because we have learned that it works. An opportunity there is to use the technology to be more efficient in our approach. Instead of letting travel and expenses dictate us, we can reach out and become very personal from the comfort of our own home. We did not have the same ability before. That is a huge take-away. We have to understand how people have changed, and that is a significant part of understanding what to do next.

Are Plaintiffs’ expectations different now? How does it affect the process?

People do have different expectations now. The pandemic and the resurgence of the Delta variant have caused people to be more thoughtful about the here and now, and not what may happen in two years.

What will be the most important aspect of a successful mediation post-pandemic?

Knowing your subject and caring about the resolution.

What ruins the chances of a successful resolution?

That has not changed a lot. A certain segment of the population has unrealistic expectations, and that will be the same whether it is in-person or on Zoom. I recently had a mediation where one party had unrealistic expectations, but the time we spent on Zoom was personal enough for the parties to develop an understanding and a genuine respect for each other. That enabled us to resolve the situation. Would that have happened in-person? Maybe. But I think in-person interactions can be more complex, which can be counterproductive.

What trends should CLOs prepare for?

ADR has not changed from a structural standpoint, but more people will realize this is probably the best way they can affect their bottom line. This is like found money for me. The whole point of ADR is to avoid going to trial. If CLOs are trying to avoid trial and to control litigation spend, ADR is a very effective approach. If they value their situation appropriately, there are business reasons for earlier, more frequent money-saving ADR.

There are always two options. You can always go to trial. The good thing about ADR is that you have control over the outcome. You can never predict the outcome of a trial.