The Digitization of Mediations

When I first started practicing law 20 years ago, my firm had a library with stacks of books of case law and reference materials. An associate might spend days in the library researching some arcane area of the law. Today, you would be hard-pressed to find a law firm with a physical library at all. Most materials are now available online, and you can do research from your office, or even on a beach in the Caribbean. The digital has replaced the physical.

In his groundbreaking book, “Vaporized,” Robert Tercek describes how the replacement of the physical with the digital will continue to change our society.

Businesses have become more of a “service.” Vinyl or CDs no longer dominate the music industry. Instead, we download digital music with iTunes or stream it with Spotify. We watch movies streamed from Netflix rather than rent physical DVDs from Blockbuster. Uber has almost no physical assets. It owns no cars, garages or service stations. Yet, it has completely disrupted the taxi industry.

The lesson is clear: If a digital version can replace any aspect of a business, service or product, it will. The freeing of data from its physical form has dramatic ramifications. No asset is as valuable as properly applied data.

Is there room for this kind of digitization in alternative dispute resolution?

Sure, you can use technology to make present your case to the mediator or arbitrator, just like you might use a PowerPoint presentation at trial, but that’s one-way communication. I’m interested in using technology to facilitate real negotiation, which is two-way communication.

Let me suggest three ways that digitization of information can lead to better, higher-quality communication.

1. Information Exchange

Frictionless exchange of information between the parties and the mediator is paramount to informed decisions. Digitizing key documents and exhibits and making them available in a central repository facilitates information exchange. As a litigator myself, I scan every document in my cases and store them on Dropbox or Google Drive. Discoverable documents can be shared easily with opposing counsel or our mediator.

When I am the mediator, I digitize the documents the parties send me to review. Using my iPad Pro and an Apple Pencil, I can review and annotate documents and carry with me the entire file. I can even display documents on TV screens in the conference rooms.

It would be so much better if all the parties, and the mediator, had access to the same information. The result would be that all stakeholders would be better informed with consistent and instant access to case information.

2. Bring Clarity to Facts

Sometimes parties want to engage in an early mediation because litigation is so expensive. The challenge is that the case is not developed, and the parties end up arguing about the facts as they want them to be rather than the facts as they are.

Using FaceTime or Skype to communicate with key fact witnesses — like a mini-deposition with each side having 15 minutes to ask questions — provides a preview of what’s in store if the case is not settled. If these video calls are conducted during the mediation itself, the calls are inadmissible at trial.

Broad factual themes can be developed in a safe environment, and the parties have a better clarity of the facts they will be faced with at trial. The result is better-informed negotiations.

3. Keep Decision-Makers in the Loop

Attorneys and the client representative often get their marching orders before the mediation. They develop a strategy and decide what their top or bottom dollar is.

When new facts come to light during the mediation, it is often difficult to express the tone of the day to the person who must authorize a higher settlement value or agree to take a lower amount than anticipated.

Using video conference calling so that the other decision-makers can experience a joint session, or be virtually present in their side’s room, can provide them with meaningful context they need to make an informed decision.

At a recent mediation where I was the mediator, one party dropped a factual bombshell on the other party toward the end of the day. Defense counsel and the insurance representative felt like it was appropriate to offer more than what they had previously determined was their top dollar. When the insurance representative called his supervisor to get more authority, the supervisor did not appreciate why the newly-discovered information was relevant.

He totally missed the context of the negotiation and declined to authorize the additional settlement authority. After further litigation and expense, the case was settled for an even higher amount weeks later. Had the supervisor correctly understood the context, he could have made a more informed decision.

Conclusion

We are just starting to understand how digitalization of physical information is transforming our society. No doubt, there are limitations to the use of technology in human-centric activities like negotiations; however, if used wisely, the digitization phenomenon can lead to better, higher-quality communication, and help attorneys and clients make better decisions about their cases.


Originally published at mediation-tips.com on March 21, 2016.