The COVID pandemic forced mediators to replacee in-person sessions with virtual ones. Some were concerned that participants would not be able to adapt, but most mediators found not only acceptance, but praise for online mediation.

Small Claims Courts, in particular, have made the transition. For example, Los Angeles uses TurboCourt, an online dispute resolution platform built by Intresys, Inc. Litigants first register, then confidentiality share documents, propose resolution, and, if possible, reach an agreement. If the parties are unable to come to terms, they may request assistance from a mediator who will assist them in navigating the process.

China has similar programs. According to the Zheng province government website, parties register with their mobile phone, describe the dispute and upload materials. Mediators conduct an online video session and if the parties reach an understanding, the parties apply for judicial confirmation of their online agreement.

Private mediators are using WebEx, Microsoft Teams, GoToMeeting, Skype, and Blue Jeans, as well as Zoom, which currently appears to be the video platform of choice. If one or more parties are not familiar with either, the mediator may schedule a pre-mediation session to discuss the process and help the party become comfortable with the technology.

Virtual mediation requires few modifications: The mediator’s opening statement will have information similar to face-to-mediations except the mediator will review platform features—particularly the mute/unmute function. The mediator may ask all participants to affirm they are not recording the session and to affirm that no one else is in the room with them. The mediator will give directions for using breakout rooms. Finally, the mediator will be sure everyone has phone numbers to use if there are technical difficulties or otherwise need to contact the mediator privately.

The mediation process itself remains much the same:  Just as face-to-face, the mediator may conduct a caucus in private breakout rooms. If the parties reach an agreement, the mediator may facilitate exchanging drafts of the agreement via email for security reasons. If security is not an issue, one advantage of Zoom, for example, is how participants are able to see their agreements being displayed on their screen. Parties can make real time editing as they develop and review their agreement.

Mediators have been reporting participant satisfaction with the process because virtual sessions are engaging and helps focus their attention on the other party.  Some mediators, on the other hand, do not like the virtual option. Their primary objections are that, in their opinion, the commitment to travel and appear in person and the factor of sharing the same space are major motivating factors that are simply not present during online mediations. Other object that the mediator cannot control the party’s physical environment, that is, parties may be distracted by their own office or home environment. And, of course, there is always the possibility or some might say inevitability, of technical problems.

My early observations of virtual mediations lead me to question if mediators were tending to be more directive online. At least one study has found that mediators self-reported as being so.

 While some find virtual mediations new, we should recognize the stimulus for online dispute resolution was e-commerce. E-Bay’s pilot program to mediate disputes between buyers and sellers dates back to 1999 and by 2010 claimed to have handled over 60 million disputes with an 80% settlement rate.

I recently received a call from a friend who said she was being forced into arbitration and would rather mediate. She asked if there was anything she could do about that.

 First, I had to be sure she understood the processes. In arbitration, a neutral third party reviews evidence, hears arguments and renders a decision. The rules of evidence used in court are relaxed. The use of arbitration is frequently agreed to in advance when parties enter into a contractual relationship. In this usage there is very limited opportunity, if any, to appeal the decision. The advantages of this form of arbitration are speed, having an arbitrator with specific expertise in the area of the dispute, and cost.

In contrast to mediation, a third party neutrally facilitates communication between the parties and helps them work out a mutually agreed upon solution.

 In recent years, mandatory arbitration clauses have become common in contracts that now require the parties to arbitrate their disputes. These mandatory clauses have become common in employment, insurance, construction, car loans, leases, credit cards, retirement accounts, investments, nursing facilities, and more. Usually these clauses prevent claimants from participating in class action suits, impose a cap on damages and require confidentiality with a non-disclosure agreement.

 Unfortunately, my friend, like many others, didn’t read her contract and was not aware she was agreeing to a mandatory arbitration clause.

Such clauses have been challenged in legislatures and in the courts. Perhaps the most well-known challenge is Siperavage v. Uber Technologies. Edward Siperavage bought a $71,000 Chevrolet Tahoe in order to participate in the Uber Black SUV program. Uber later informed him his Tahoe would no longer qualify as an upscale vehicle. He sought to file a class action suit but a federal judge ruled that it must be handled through the mandatory arbitration clause. His attorney called the ruling another example of aggrieved individuals being forced into arbitration.

 Siperavage and others who signed mandatory agreements are taking their disputes to arbitration as required. But businesses who hoped to avoid large class actions cases now are dealing with thousands of arbitrations with nearly identical circumstances.

So, can my friend avoid mandatory arbitration and use mediation? I can’t provide a legal opinion, but my layperson’s view is both parties would have to agree and it’s unlikely the company will do so. Some state legislatures have acted to ban mandatory arbitration in sexual abuse cases and some are reviewing the uses of the clauses in employment contracts as well.