Before you get offended, I know that COVID is still around and people are still getting sick. But not quite as sick as they were in 2020/21. We understand a lot more about the virus than we did before, and we have returned to gathering. Hence the title.
Today, our personal injury law firm settled a car accident case at mediation. It was a global mediation, meaning that both the tort claims (pain and suffering agains the at fault driver) and the accident benefit claims were at issue.
The mediation took place over Zoom. Between the adjusters, mediators and lawyers, there were 9 participants to the mediation.
All of this is not unusual.
Before Zoom, a mediation involving 9 participants would have required 1 main room, along with 2-3 breakout rooms. It would have needed some sort of catered lunch. It would have taken place at a hotel. One party lived in Penetanguishene, another in Grand Bend, another in London and others in the GTA. All of the parties would have needed to travel to a central location for the mediation; and perhaps stay overnight. The travel costs and room booking fees for all of the parties would be high; and would increase in the cost of the mediation and litigation.
Instead, all of the parties were able to do the mediation from the comfort of their own home; or offices. There was no need for anyone to leave early to catch a train home. Sometimes, those “leave early” to catch a train times worked out quite well. It forced the parties to cut to the chase and put out their best numbers earlier on in the process.
When the mediation was over, all of the 9 parties hit the “Leave Meeting” button on their screens and we were all back to where we all started. No travel time incurred or lost. Everyone was able to move on to their next task.
Leaving that mediation, I couldn’t help but think about the ways we conducted mediations before the Pandemic. There are a lot of moving parts for a mediation. Getting 9 people under the same roof in the same City or Town was never easy. Parties were always late for one reason or another. Whether it was traffic, bad weather, train or flight delays, or simply getting lost. That was the norm.
Nowadays, the norm for mediation delays in the Zoom era is poor internet connections which seem easier and much quicker to fix.
I couldn’t help but think of all of the money and hours saved for everyone incurred. I also thought about the environmental savings because 9 fewer people had to drive or fly to get to a destination. I then thought about all of the money lost to the travel, hotel, and food catering businesses. Those Zoom mediations present fewer train/plane tickets sold; fewer taxi rides required; fewer car rentals; fewer conference room bookings; fewer hotel room bookings; fewer catering jobs available; fewer client meals before or after the mediation is conducted. That’s a lot of lodging, wineing and dinning dollars gone and unaccounted for; all because lawyers all across the province in virtually every industry are doing their mediations over Zoom. In person mediations were their own stimulation packages for the local economy, hotels and the transport industry.
There is less human connection in the physical world. I was not able to shake my clients’ hands following the successful conclusion of the mediation. I was not able to see the gleam in their eyes when the mediator told them that we had a deal. I was not able to see the relief and joy when the matter had settled. I was not able to comfort them with a calming reassurance that we were alright while we waited for offers to come back from the defence room. I was not able to share a passing joke about some funny experiences at mediation to fill the dead time while we waited in a breakout room together for the mediator to come back with an offer or a message. The charm of the mediator is neutralized because it’s hard for that charm to cross over during a Zoom call.
All of the parties are more easily distracted over Zoom. You can see that their attention is divided to another screen, their phones, their pets, or anything else that will beep, buzz or ring.
It’s also very easy for a Plaintiff to say “no” when they don’t have to leave the comfort of their own home for something legal in their case. Most Plaintiff claims are run on a contingency fee basis. That means that a Plaintiff has not paid their lawyer any money for their services or for the case to get running. The Plaintiff has no skin in the game so to say other than what the case stands for. If the discovery is done virtually, and the mediation is done virtually, and the Pre-Trial is done virtually; then how will a Plaintiff be prepared to withstand the pressure of needing to appear in person when the time comes for his/her trial before a Judge and a Jury? It’s easy for a Plaintiff to respond to questioning at home in their living room. What happens when there are real people around and they don’t have the luxury of responding to questions by zoom? There is a real difference between having the spot light on you in the virtual world vs. having the spotlight on your in the physical world. It’s far more difficult and intense to answer questions in the physical world. You really feel the heat so to say.
While I think that Zoom is great, we as personal injury lawyers should not forget that the majority of trials don’t happen over Zoom. They continue to happen inside of Courtrooms in the physical world. It requires that people arrive at unfamiliar places often far from their homes and arrive at those destinations on time. They will have to fight traffic to get there, find a parking spot (likely have to pay for parking, bring a snack/lunch), and sit around a place which is not our office or living room. Personal injury clients need to be prepared for what to expect when they have to answer questions in person; as oppose to answering questions over a digital platform from very comfortable and cozy surroundings. Courtrooms are neither comfortable, nor cozy environments for anyone; regardless if you are in the right; or in the wrong.