As we continue to do business in what seems like a brave new world, Virtual sessions are one aspect of alternative dispute resolution (ADR) that seem to be here to stay. Out of an abundance of caution (and convenience), our clients continue to book online engagements at a higher rate than in-person mediations and arbitrations. At Alterity ADR, we support this practice to the extent it serves the needs of clients.

For more than 18 months, neutrals have conducted mediations and arbitrations online with substantial success. According to a 2021 study conducted by the National Academy of Distinguished Neutrals: 78% of member neutrals reported achieving similar settlement rates to in-person engagements, and 10.4% reported achieving better results.

Virtual ADR provides tremendous benefits for clients seeking confidence, efficiency, and fairness in the process.

A Neutral Space

Since a mediator or arbitrator’s impartiality is essential to the integrity of the ADR process, the same should be considered for an ADR center. When advocates repeatedly work with the same neutrals, they risk having the clients lose faith in the neutrality of the process. Conducting engagements online eliminates the phenomenon of neutrals and advocates fraternizing in hallways and break areas. This camaraderie is welcoming for many, but for those who are not insiders, it can be marginalizing and off-putting. To some extent, a virtual environment puts everyone on equal footing.

Additionally, for contentious cases where the parties cannot meet for a joint session or interact in person, a virtual setting provides the necessary distance for all sides to work toward a solution without physically coming together.

Convenience & Cost Savings

An oft-cited criticism of ADR is the cost relative to traditional litigation. In arbitration, depending on the arbitrator and the provider administering the arbitration, the process may be lengthy and costly, particularly in instances where clients and lawyers must travel for the hearing. Virtual engagements may significantly reduce cost for clients while producing similar outcomes to in-person matters.

Fewer Geographic Constraints

Virtual ADR enables clients to consider different choices for their neutral and not just a “familiar” practitioner or one within the matter’s jurisdiction. Just as parties may be remote, neutrals can be virtually anywhere.

Reduced Idle Time

In traditional mediation, litigants often sit alone while mediators caucus (meet separately) with other participants. This practice slows down the process and may require a party to sit alone much longer than expected while the mediator works with the other side(s), particularly in multi-party cases. A virtual setting gives participants the comfort and flexibility to focus on something else while waiting for the next stage of the mediation. While sometimes mediators use this feature to encourage settlements (“Nothing happens before lunch.”), it reduces satisfaction with the process. 

Less Stressful Experience

In instances where high emotions are involved, participants may prefer to mediate or arbitrate from the comfort of their own home or office. Granted, the mediator might prefer the optics of conducting the matter on a high floor of an office building. Still, if the provider’s goal is to work in the client’s best interest, their need to fill conference rooms should not trump the client’s needs for comfort and flexibility.

Decision-Makers Present

Without the need to travel, key decision-makers can easily participate in a mediation virtually. The presence of those key decision-makers is an important factor in whether a case settles or stalls. Furthermore, more participants, such as adjusters, junior associates, or interpreters, can attend a virtual mediation without incurring additional costs.

The Path Forward

While there are additional benefits of Virtual ADR, admittedly, there are ways in which it may fall short. Inevitably, there may be technical challenges or confidentiality and privacy concerns. Yet, with the proliferation of training for neutrals and enhanced security features within various video conferencing platforms, these are minor considerations.

Another valid concern is the difficulty for neutrals to build rapport with the parties or to gauge body language fully. If 80% of communication is nonverbal, virtual formats may limit a neutral’s ability to interpret participants’ cues. But typically, when cases do not settle it is due to other factors such as lack of preparation, inflexibility, lack of authority, inopportune timing, or unrealistic expectations. If a virtual format becomes an impediment, the parties and the neutral can always agree to schedule an additional in-person session.

At Alterity ADR, we liken the acceleration of Virtual ADR to an equalizer. An online forum provides greater efficiencies, fairness, and an optimal chance for resolution— which are all outcomes that can enhance a client’s confidence in the overall ADR process.

But there is also a danger if this paradigm becomes too transactional and we lose the human element. We need to keep all these things in mind as we create a more human-centered, inclusive, and results-driven experience.

I’d love to hear your thoughts on what’s possible for ADR– whether it’s services you’d like to see or referrals of promising neutrals. Drop me a note at marcie@alterityadr.com.

Marcie Dickson