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Judges See Video Mediation Continuing Beyond Pandemic

Posted on Mar. 5, 2021

Despite some misgivings about holding mediation conferences remotely at the beginning of the coronavirus pandemic, several judges agree that video-assisted mediation is here to stay.

“I think going into the future, even if this COVID went completely away, we’d still see a good percentage of these [mediation conferences] occurring by video from now on,” Judge Michael E. Hegarty of the U.S. District Court for the District of Colorado said March 4.

Speaking at a Federal Bar Association virtual tax law conference, Hegarty said he was uncomfortable doing mediation by video at the beginning of the COVID-19 pandemic, but he’s come around to the idea as he’s seen the results.

“I’ve been just as successful by video, and I’m becoming used to getting to know people and adjusting my practices,” Hegarty said.

Tax Court Special Trial Judge Peter J. Panuthos agreed, saying that before the pandemic, he didn’t like conducting alternative dispute resolution meetings remotely. But after being forced to conduct trials remotely during the pandemic, and thanks to significant improvements in videoconferencing technology, he thinks the practice will continue.

“If I can do a trial remotely . . . I can certainly do a mediation remotely,” Panuthos said.

Hagerty, Panuthos, and Chief Judge Eleni M. Roumel of the Court of Federal Claims all said there’s more of a personal connection when conducting in-person mediation sessions with the parties that they don’t necessarily get in video meetings. “I think there’s something about looking somebody in the eye and talking to them that’s helpful,” Roumel said.

But the convenience and cost savings of video meetings weigh in favor of maintaining them after the pandemic, the judges said.

“Because our court has nationwide jurisdiction and people are flying from all over the country to get here, it’s a lot more cost-efficient to do a Zoom and at least have that initial conference, too, by Zoom,” Roumel said.

Hegarty said he’s seen a 30 to 40 percent increase in settlement conferences since the start of the pandemic, attributing that to pandemic-related delays in the courts. “Cases that used to take two years are now taking three or four years, so parties are thinking more about the alternative settlement than they ever have before,” he said.

There’s really no good reason not to consider mediating a case, Hegarty said. “At the very least, you’re going to walk away with some informal discovery and test the resolve of your opponent and whether they’re willing to go to the mat in this case or not. . . . If anything, this is an educational process and there’s absolutely no reason not to engage in it,” he said.

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