Online mediation here to stay, say Maryland lawyers, mediators

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When Martin P. Welch retired as chief judge on the Circuit Court for Baltimore City in 2014, he began mediating legal disputes for the McCammon Group, which provides mediators in Maryland, Virginia and D.C.

Welch has mediated hundreds of such disputes – most of them, since last spring, remotely, which was rare before the pandemic.

To his experienced eye, the advantages of virtual work over in-person work are many, the disadvantages few.

“I don’t see much distinction between the two,” he said. “There’ve been cases I regret that I’m not there to look someone directly in the eye, or not be there when a plaintiff might be distraught. But that just means we have to work harder.”

Like other legal issues, personal injury cases have been upended during the pandemic, forcing many cases to be delayed and those that went forward to be done online.

But both the mediators and the attorneys involved – on both sides – agree that the process has not suffered much, if at all.

In fact, most agree that in some ways it has been better and that virtual mediation, in some form, is here to stay.

“I’ve received favorable responses about doing it (virtually) from a number of people,” said Tonie C. Clark, another retired Maryland judge who now works as a mediator.

One of the biggest upsides, she said, is that people don’t have to travel for the mediation. “Plus, they don’t have to worry about parking or how long they will be there, especially if they have children at home,” she said. Doing the mediation from home, she said, can be less stressful for both plaintiffs and defendants.

Another benefit of online mediation of disputes is the cost, since people involved in the mediation, such as insurance company representatives, do not have to fly in from out of state to attend. “It’s easier to have those decision-makers available (remotely),” Clark said.

Confidentiality issues are ameliorated by the ability to have opposing clients and their representatives in different rooms online, where it can be arranged that they cannot see or hear each other. “There’s the same confidentiality between the attorney and the client,” Welch said.

Zoom in particular made the process easy and insured confidentiality with its easy-to-use breakout rooms, according to Jeff Trueman, an attorney and certified mediator who has conducted more than 1,500 mediations.

“Because of Zoom, I was able to maintain my practice,” he said.

Sometimes, online meetings reveal something about one of the principals in the case – they have a dog, something personal on the wall — that helps him establish a rapport and a relationship with the person, Trueman said. That can make a settlement more likely.

In addition, he said, virtual negotiations can manage some of the “intense reactions” from parties involved, which take up time and can make a dispute harder to resolve.

Sandra Miller, a health care attorney who usually represents the providers, said plaintiffs like to have their day in court, which can often facilitate a settlement. She said she was surprised that virtual mediations “got a lot of that seem feeling” as in-person negotiations, and so did not impede the chances of settlements.

“I think there are some efficiencies (to virtual mediations) — it makes people more flexible,” said Miller, who is based in South Carolina but been involved in cases in Maryland.

One drawback of virtual mediations, mediators and attorneys said, was the learning curve it presented for all participants. Although once that was overcome, they agreed, the mediations ran smoothly.

Another drawback was rooted in the same division that made getting health care during the pandemic more difficult for some: the lack of internet access, computers or computer savvy for many poorer people in poorer areas.

“It’s like the problems that always exist between the haves and the have-nots,” said Ben Boscolo, a personal injury attorney with Chasen Boscolo, which has offices in Baltimore, Greenbelt and Waldorf.

Boscolo, who only represents plaintiffs, said many people turned to online mediation of their disputes because they did not want to wait for the courts to reopen. That, he said, seemed to lead to more settlements – for better or worse.

“Some people had already waited for three or four years … and mediation became a way for those who did not have the luxury of waiting any longer to get their cases resolved,” he said.

Still, Boscolo said, the pandemic-necessitated pivot to virtual mediations is not likely to go away as courts reopen.

“I think the use of remote technology in litigation is here to stay,” Boscolo said. “And that’s a good thing.”

Others agreed, although they said it will be used more sparingly.

“There will continue to be virtual mediations,” predicted attorney Miller. “But it will be done strategically.”