Originally published in the October 2021 issue of the St. Louis Lawyer magazine. Download PDF.
This past year and a half has brought about many changes in the way the world conducts nearly every interpersonal activity. And the universe of mediation and arbitration has been no exception. To gain some insights into how professional mediators and arbitrators have been impacted by the shift to virtual sessions, and how they manage lawyers and clients in this new environment, we spoke to three retired judges who now serve as civilian mediators.
They are: Hon. Donald G. Wilkerson, Hon. Lawrence E. Mooney and Hon. Douglas R. Beach.
Q: Judge Wilkerson, having worked this past year primarily using videoconferencing platforms, do you feel virtual sessions have been as effective as in-person sessions for you as a mediator, as well as for the attorneys and their clients?
Judge Wilkerson: While I absolutely believe virtual mediation works, I personally prefer to do in-person sessions. Human contact is important in almost everything we do, and in my experience, being in the room together is beneficial for this type of interaction. That said, participants tend to like the convenience of these virtual meetings, which suggests to me that many mediations and arbitrations will remain virtual in the future.
Q: People tend to think that arbitrators are inclined to give both sides a little something. Is that true?
Judge Wilkerson: I don’t believe that to be true. While compromise is a completely reasonable pursuit, as arbitrators we are not looking for compromise, but for a correct and fair decision. I seek to get it right, and I believe most arbitrators do as well. As a retired judge, I realize that I can’t make everyone happy with my decisions. I have found that the best result is the correct result.
Q: Judge Mooney, how can advocates help clients choose between litigation and mediation?
Judge Mooney: An effective advocate must also be a counselor. You might counsel your client along these lines: Know your emotions. Feel your emotions. But don’t act on your emotions. Draw some deep breaths and let it go. Base your decisions today as much as you can on the dispassionate use of reason. Imagine you are facing two doors. One is marked "litigation;" the other, "mediation." Act only in your self-interest, carefully weighing all the costs and benefits, and then choose the door that better serves your interests. Give no weight to the perceived misconduct of others. Focus only on the question of what path is better for you.
Counsel should honestly explain the costs and benefits of litigation. Of course, these will include the purely financial costs, but should also include intangible costs, such as the frustration, anxiety and uncertainty that can accompany ongoing litigation.
Q: What advice would you give lawyers facing mediation?
Judge Mooney: Lawyers should prepare for the mediation by exchanging all necessary information with their opponents and visiting with the mediator in advance to discuss the dispute and strategies for resolution. Lawyers and parties should never give up on a mediation out of frustration with their opponents. They should terminate efforts at mediation only if they conclude litigation will better serve their interests.
Q: Judge Beach, as a mediator, how do you help clients prepare to present their best case on a virtual platform?
Judge Beach: Whether the mediation is virtual or in person, I start by encouraging the parties to see an attorney or other third-party professionals to help them prepare. Prior to our first meeting, the mediator sends out forms that explain what mediation is and what the procedures will be. I also ask for any documentation, such as tax returns, or other pertinent information related to the matter we'll be discussing. When done virtually, I find the first meeting tends to primarily focus on gathering the necessary documents and explaining the rules of the road. It's important for the mediator to have the best information possible so that they can see the whole picture, which will help them try to find resolutions for the issues at hand. My personal preference is to have that first session be in person because it's easier to establish a rapport with all the parties. Then after that, virtual meetings seem to work well.
Q: Have virtual mediations been effective for family matters?
Judge Beach: I have found that virtual mediation is particularly useful for certain family situations, such as divorce settlements, custody mediations and domestic violence cases. Oftentimes, the participants may feel more comfortable not having to literally be in the same room with each other. Having the mediation done virtually allows some people to feel more at ease talking about difficult, intimate matters. And obviously, when everyone appears virtually, we don’t have to worry about keeping folks physically separated and figuring out who comes in first and who leaves first.
I think the virtual setting assists in simplifying things greatly. And even if we don’t get to resolution, I think the mediation is important because it allows both sides to be heard, to air any differences and to explore ways to avoid going to trial.
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