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Alternative Dispute Resolution
2. Participation–Pre-pandemic,manyadjustersandinhouseriskmanagersattendedthemediationplenary session and opening statements via telephone, citing “travel restrictions” as the reason they could not attend in person. When that occurs, defense counsel keeps his or her clients apprised of the demands and relays their offers and thoughts to the mediator. These participants were not only remote but were not fully engaged in the mediation process. Virtual mediation assures that decision makers can be present throughout the mediation process and that the mediator has access to them. The fact that the decision makers are present and observing the mediation process has resulted in better prepared and more engaged defense counsel. It also gives defense counsel a lot of one on one time with their clients to discuss other matters and to develop relationships.
3. Persistence – COVID-19 changed many things and the transition to virtual mediations also created a paradigm shift in how parties approached and conducted mediations. Mediation is being viewed as the best pretrial opportunity for resolving cases. Lawyers are consistently demonstrating increased interest in resolving cases at mediation or in follow-up negotiations. Parties are much more likely to adjourn a mediation than to ask the mediator to declare an impasse. Adjournment often results in new ideas, assessments, continued negotiations, and a settlement.
H. Mills Gallivan is a Partner with Gallivan White & Boyd, P.A. in Greenville, SC. Contact him at:

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