by Claire Kimutis

With the rise of COVID-19 came the rise of virtual proceedings, bringing with them unique considerations and benefits. In late 2020, consulting firm KPMG and Baker McKenzie conducted a survey of private practice lawyers, judges, arbitrators, and their clients about the changes to the legal field in a post-COVID world. Roughly 70% of respondents have attended a virtual hearing since the beginning of the COVID-19 pandemic, but only 21% of respondents had participated in a virtual mediation. The survey suggested the legal field’s need for adaptation and evolution in the modern world and suggested a preference for virtual proceedings and a hesitancy toward virtual mediation, but optimism for the future of virtual alternative dispute resolution. In the years following KPMG’s survey, virtual mediations have become a popular alternative to traditional, in-person mediations, eliminating travel costs and providing an opportunity for greater participation and convenience.

The most obvious benefit of virtual proceedings is accessibility. In the personal injury context, virtual mediations remove barriers and provide the opportunity for more participation on both sides. Virtual mediations allow for plaintiffs to participate in mediation without significant interruption to his or her daily life. A plaintiff can participate fully without needing to take a day off work or find childcare. For the defense, insurance adjusters can fully participate when location could have otherwise precluded their full involvement without high travel costs. Virtual mediation provides a more streamlined process with full adjuster involvement and more convenience to plaintiffs who ultimately have the power to agree to a settlement.

With the onslaught of backlog cases resulting from COVID-19 court closures, court-mandated mediation has become an effective tool to trim down dockets. The ease of scheduling virtual mediations can expedite the process. Even when parties are at a standstill in negotiations with no potential for settlement outside of trial, virtual mediations provide for a quick, less costly alternative to traditional mediation.

Despite the many benefits of virtual mediation, the KPMG survey revealed that roughly 65% of respondents would prefer an in-person mediation to a virtual one. This may be due to the impersonal nature of virtual mediations and virtual communications in general. As with any virtual communication, virtual mediations are missing a key feature of in-person mediations—a sense of camaraderie and trust with the mediator. Oftentimes, a personal injury plaintiff believes his or her case is worth more than an average jury would award. A skilled mediator can act as the voice of reason to a client with unrealistic expectations. There is a great benefit to the mediator, an experienced third party, leveling with a plaintiff about the true value of his or her case. However, without the benefit of being in the same room, a plaintiff may not build a strong rapport with the mediator and be less open to trusting his judgment.

As always, preparation is key to a successful outcome. Plaintiffs’ attorneys should share the mediator’s credentials and experience with their clients and build a foundation of trust and confidence in their mediator’s ability to advocate for the most equitable outcome of the case. Defense attorneys should take advantage of pre-mediation reports to convey the strengths of their defenses to prime the mediator on his or her assessment of the case. Plaintiffs’ attorneys should prime their clients for a realistic outcome and defense attorneys should be prepared with their top authority to settle.

As courts and the rest of the world are returning to pre-pandemic norms, virtual mediations remain an effective tool of alternative dispute resolution. Despite the majority of KPMG’s respondents’ preference toward in-person mediation, roughly 56% of respondents who had participated in virtual mediations rated their experience as good or very good, and 24% rated their experience as excellent. Virtual mediations provide a cost-effective, time-efficient alternative to traditional mediations. The downfalls of virtual proceedings should evolve with time and the general population’s growing familiarity of virtual communication. Hybrid mediations, where parties are both physically present and others participate virtually, could prove to be an effective combination of virtual and traditional proceedings.

Jeffery Smith and Iris Harris were successful in achieving summary judgment for our client in a case involving alleged injuries due to a motor vehicle collision. In attempting to supplement his pleadings, Plaintiff tried to add our client to the suit outside of the statute of limitations. For this reason, our firm filed a motion for summary judgment. After a hearing, the trial court granted the motion, dismissing Plaintiff’s claims against our client with prejudice.

Julia Sinor obtained a summary judgment in Dallas County based on limitations. Plaintiff’s attorney argued that he was unaware of the defendant’s existence prior to the expiration of limitations and that the Court had the discretion to extend the limitations deadline under the Texas Supreme Court’s emergency COVID rules. While the Court did, in fact, have such discretion, Julia argued that the Court should not extend the limitations deadline because the Plaintiff’s attorney did not use diligence in suing the defendant even after he was aware of the defendant’s existence.

Joe Harrison successfully argued a Motion for Summary Judgment on behalf of a client in the utilities industry. Joe argued that the facts admitted by Plaintiff in his petition showed that Plaintiff was aware of the issue he complained of more than two years before he filed his petition, thereby barring the claims in Plaintiff’s lawsuit. The Judge agreed with us and all claims against Fletcher Farley’s client were dismissed.

We are pleased to announce that Julia Sinor and David Colley were elected to partnership in the firm effective January 1, 2022.

Congratulations to Julia and David on this milestone and well-deserved professional achievement.

Congratulations Mike Shipman

Mike Shipman has accepted an invitation to join the International Association of Defense Counsel (IADC). The IADC is an invitation only global legal organization for attorneys who represent corporate and insurance interests. To learn more about him, click here.