Because Michigan’s courts are all but closed during the COVID-19 coronavirus pandemic, if you need to adjourn in-person mediations and arbitrations, you should do so; everyone will understand and undoubtedly support that decision. But if you need to proceed with your mediation or arbitration in a safe environment, and there aren’t other reasons against it, then “remote” ADR using videoconferencing is a viable option. In fact, we can all anticipate an increase in online mediation and arbitration proceedings using digital platforms over the next few months.
Social distancing, self-isolation, self-quarantining are terms no one used or even know a few months ago. Today, they are part of our everyday lives and the measures we take to protect our families, neighbors, friends, co-workers, and clients from the COVID-19 coronavirus.
Given Governor Whitmer’s shelter-in-place executive order and the Michigan Supreme Court’s administrative orders to restrict access to courts and placing dockets across the state on hold, the message is clear – take care, stay safe, stay home, and be smart. None of us want to take any steps that place others and ourselves at risk. But we can implement strategies to cope with the current crisis.
It was so easy when I embarked upon a litigation career in 1978. In that bygone era, many clients expected and were willing to pay for costly and aggressive litigation tactics, and it was not unusual for litigators to take two or more cases to trial each year. Litigation budgets were still in the future – a cost-benefit analysis for continued litigation paled in importance to the principle that needed to be established at a trial, ADR was virtually unknown and seen as only for the “weak of heart,” and trial courts had not yet adopted effective case management techniques, judicial “evidence-based practices” or imposed staged and proportionate discovery limitations. Fast forward 40 years, and we see a radically different landscape.
Two fascinating follow-up studies, one conducted by the Supreme Court Administrative Office (SCAO), and another by the ABA Section on Alternative Dispute Resolution, provide significant insights on the mediation process and the timing of ADR that mediators and litigators should consider. Here we discuss the initial research as well as the follow-up studies.
With increasing frequency (often during a mediation) we hear the refrains: “There are just some people I can’t talk to” or “They just don’t listen to reason.” The polarization of society into the “right” and “wrong” camps is undoubtedly a contributory factor to the reticence to engage in difficult but critically important conversations.
While a fascinating social development, the inability to have productive difficult conversations is all too often self-defeating and counterproductive to important negotiations, including those that take place during mediations. A sine qua non of many successful and mutually beneficial business negotiations is truly engaging in positive conflict resolution through knowing how to have difficult conversations effectively.
