Introduction
In November 2020, MetroWest Mediation and the Framingham and Natick district courts worked together to develop a program for virtual mediations for small claims cases when the court was closed for in-person civil sessions because of the COVID-19 pandemic.
The development of this program was led by Seth Izen, executive director at MetroWest Mediation, and Sean Coleman, first assistant clerk-magistrate. First Justice David Cunis and Clerk-Magistrate Brian Kearney were strong supporters of this effort.
The virtual mediation option, offered when small claims sessions were paused, gave parties an opportunity to settle their dispute in a timely manner. It also helped the court reduce the backlog in its docket.
Offering virtual mediation prior to a hearing is convenient for parties and contributes to accessibility to justice. The Framingham and Natick district courts and MetroWest Mediation have continued offering virtual mediation to maintain this option for parties.
Two years later, we’ve found that this virtual mediation program has led to a higher use of mediation; increased agreement rates, which removed more cases from the court docket; and provided a more accessible and convenient service for both the parties and mediation-provider.
Process
The virtual mediation process that was developed is the following:
- After the filing of a small claims complaint, parties were notified by the court of a date/time to call a court conference line session for a status hearing.
- At the status hearing, the first assistant clerk-magistrate called the docket list, explained about mediation and gave parties the option to attempt mediation.
- A staff member with MetroWest Mediation Services was on the call. If both plaintiff and defendant agreed to mediation, the staff member collected the names and email addresses of the parties and scheduled them for a Zoom mediation — at a time of convenience to the parties — usually within the week.
- After the call, MetroWest Mediation staff sent out the Zoom link and the agreement to participate (through DocuSign) to the parties.
- At the date and time of the mediation, the parties logged in to the Zoom session, which was hosted by MetroWest Mediation Services.
- If an agreement was reached in the virtual mediation, MetroWest Mediation shared the agreement with the court and asked the court to consider the case settled. If no agreement was reached, MetroWest Mediation requested that the court schedule the parties for a hearing.
Increase in Participation in Mediations
This process was very successful at giving parties an opportunity to settle their dispute and at diverting cases from requiring a hearing, thus reducing the court’s backlog. Between Nov. 1, 2020, and Nov. 1, 2022, MetroWest Mediation Services virtually mediated 288 small claims cases. This represented a 27% increase in cases from the number mediated in person in a comparable period before the pandemic (Nov. 1, 2017–Nov. 1, 2019). This suggests that the virtual option with a pretrial status hearing can increase the number of cases that go to mediation.
The increase in participation is likely due to the convenience for parties who are eager to resolve their dispute without having to wait for a hearing or travel to court.
Higher Agreement Rate
In the virtual mediations, a total of 181 out of 288 cases reached agreement for an agreement rate of 63%. This was significantly higher than the agreement rate for in-person mediations. In the 226 cases mediated in person for the prior two-year period, around 50% reached agreement.
This higher agreement rate may be impacted by increased levels of comfort of the parties who are mediating from the comfort of their home and not in the physical proximity of the other side. Virtual mediations also do not have the same time constraints as mediation in the courthouse, potentially leading to more cases reaching agreement.
Benefits of Virtual Mediation for Small Claims Cases
To the Courts
Virtual mediation saves time for the court, as trials can focus on those cases in which parties are not able to reach resolution. This makes the court calendar more efficient. The scheduling of mediation shortly after the status hearing enables the court to stay within time standards even if no resolution is reached in mediation.
A goal of the court is to deliver accessibility to justice, and virtual mediation serves the court’s interest through enabling mediations to take place throughout the week, at varying times. The limitations of courthouse space preclude this option for in-person mediation. Accessibility to justice is also increased through not requiring parties to travel or need to attend a court session with a set time.
To the Parties
The convenience of this virtual process is a major benefit for the parties. As the initial status hearing is held by phone, and the mediation by Zoom, a party who reaches resolution has no need to travel to the courthouse. This saves significant time for parties and alleviates the challenge of public transportation or facing rush-hour traffic to get to a court session.
The scheduling of the mediation also contributes to the convenience factor. The mediation program has time slots for virtual mediations between 9 a.m. and 7:30 p.m. on Monday through Friday, giving parties an opportunity to avoid missing work. In this way, virtual mediation is more responsive to the disputants through offering significant flexibility on scheduling.
To the Mediation Provider
During the COVID-related court closures of 2020 and 2021, this virtual mediation program enabled MetroWest Mediation Services to continue engaging its staff and volunteer mediators through providing mediation for cases.
Virtual mediation provided a way to engage volunteers for whom service during the day was not possible, such as those volunteers with full-time jobs. It also gave volunteers, who were cautious about entering an in-person space due to COVID, a chance to mediate.
Finally, mediation volunteers are accustomed to traveling to the courthouse and occasionally not receiving any cases. With pre-scheduled mediation sessions by Zoom, the potential loss of volunteer time of waiting in court and not receiving a case is eliminated.
Challenges of Virtual Mediation for Small Claims Cases
Challenges to the Courts
Virtual mediation for small claims cases requires a new process to hold the status hearing and work with the mediation program to schedule hearings if the case was not resolved in mediation. Courts need staff willing to put in the upfront time to create and maintain the process. Ultimately, the Framingham and Natick district courts found that the mediation process saved them time in the long term, but not all courts have the staff who are able to handle the process change. Some courts will find it simpler to keep the small claims sessions in person and refer cases on an as-needed basis to a mediator present in the courtroom.
Challenges to the Parties
Access to the proper technology is necessary for virtual mediations. Some parties did not have smartphones or were unable to access Zoom video. To address this situation, MetroWest Mediation enabled parties to call in to the mediation using the Zoom call-in number. When this occurred, and one party was unable to join with video, mediators requested that the other party turn off their video. This helped eliminate any potential bias on the part of the mediators from seeing only one party.
Another challenge occurred when parties wanted additional information regarding a statute or court procedure. For in-person mediations, mediators would refer that party to the clerk’s office to get information. For virtual mediations, mediators needed to have the party either call the court, look online, or potentially continue the mediation to a later date so they could get that information.
Challenges to the Mediation Provider
MetroWest Mediation’s roster, similar to many mediation programs, is composed of many retirees who have the time to volunteer during the day. The adoption of a technological platform such as Zoom presented a challenge. It was too onerous for many volunteers to handle both the task of managing the Zoom room (e.g., creating breakout rooms, sharing their screen for agreement writing, etc.) and mediating the case.
To address this challenge, MetroWest Mediation specifically trained a core group of “Tech Lead” mediators. These are more technologically savvy mediators who are comfortable handling virtual aspects of the case.
There were other anticipated challenges that did not represent a significant problem. For instance, we anticipated that parties might be distracted since they were at home or on the worksite. We did not find that to be a substantial problem in mediations.
Another anticipated challenge was that distraught parties, in the midst of a difficult conversation, might simply leave the Zoom room to end the mediation. This happened extremely rarely, and not to a greater extent than a party might walk out of an in-person mediation session.
Finally, this virtual process requires more extensive record-keeping and communication on the part of the mediation center. On a weekly basis, MetroWest Mediation shares the results of all mediations with the Framingham and Natick district courts.
Other Types of Cases
MetroWest Mediation and the Framingham and Natick district courts also offer virtual mediation as an option for summary process mediations and for civil mediations and conciliations. Our impression is that virtual mediation increases the likelihood that attorneys and insurance adjustors are willing to participate in alternative dispute resolution for civil cases. The ability to participate from their office, without the need to travel to court, makes mediation or conciliation a much more appealing option for advocates and disputants.
Conclusion
In summary, virtual mediation helped provide a better service to the court, disputants and mediation provider through being more convenient and efficient. With higher participation in mediation and increased agreement rates, virtual mediation for small claims cases seems to offer improved results compared to in-person mediation.
Given the success of this virtual process to divert cases from a hearing and allow parties an opportunity to settle the case without going into the courthouse, there is a strong case to be made for the continuation of virtual mediation in small claims cases.
Seth Izen is executive director of MetroWest Mediation Services. Izen completed his basic mediation training at Brown University, where he earned a B.A. in political science and contemplative studies. He earned an M.A. in peace and conflict studies at the University of Massachusetts Lowell, where he also taught a graduate-level course on Mediation: Theory and Practice.