ABI Journal Article Provides Helpful Recommendations for Shift to Remote Mediation in Bankruptcy Cases

ABI Journal Article Provides Helpful Recommendations for Shift to Remote Mediation in Bankruptcy Cases

Alexandria, Va. — While traditional face-to-face mediations and in-court proceedings have been curtailed due to the COVID-19 pandemic, more courts and lawyers are using remote mediation to move many cases forward in an efficient, cost-effective manner, according to an article in the June ABI Journal. “Learning to adapt and utilize remote mediation is necessary if bankruptcy lawyers and mediators are to serve those who have engaged them to resolve disputes,” ABI Journal Coordinating Editor Leslie A. Berkoff of Moritt Hock & Hamroff LLP (New York) and Hon. Louis H. Kornreich of Bernstein, Shur, Sawyer & Nelson PA (Portland, Maine), co-chair of the Special Projects Subcommittee of ABI's Mediation Committee, write in their article, “Taking Mediation Online: The Practicalities and the Pitfalls.” “Doing so will enable lawyers and mediators to meet the explosion in bankruptcy cases that is likely to occur in the aftermath of the current health crisis when bankruptcy courts are likely to be overwhelmed.”

In the absence of in-person mediation, Berkoff and Kornreich point out that remote mediation provides bankruptcy professionals with the ability to resolve time-sensitive bankruptcy disputes. “Bankruptcy courts have paved the way, as telephonic hearings have been in use for a number of years and video hearings are now occurring with regularity,” they write. “Applying technology to mediation is a step in that same direction, and training mediators and the bar will be another key to its success.”

Berkoff and Kornreich pointed out five important considerations to improve the effectiveness of remote mediation:

  1. The mediator who is conducting a remote mediation must be both capable and comfortable with the technology they use for the session. “Just as mediators are trained in the art of conducting in-person sessions, they must be similarly trained to conduct mediations online.”
  2. The mediator needs to ensure that all participants are comfortable with the confidentiality of the online process. “The mediator and lawyers must carefully review the confidentiality expectations of all the participants and stress the importance of maintaining the confidentiality of the process.”
  3. Security precautions should be taken with a remote vendor, and every participant should be made aware of these precautions. “By adding dual passwords, locking the session once all participants have joined and implementing some of the other recommended precautions, remote mediation will be as secure as the technology allows.”
  4. The parties should agree upon a contingency plan in case the technology fails to work, such as having technicians on standby.
  5. The mediation agreement should be re-crafted to incorporate all the above concerns and any special concerns of the participants.

“Mediation always depends on the parties having trust in the mediator and the process,” Berkoff and Kornreich write. “Therefore, it is up to the mediator to properly set the stage by establishing trust in the mediator, the technology and the process of remote mediation.”

Taking Mediation Online: The Practicalities and the Pitfalls” is available on the ABI Journal site for ABI members. Not an ABI member? Find out the many benefits of membership today.

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ABI is the largest multi-disciplinary, nonpartisan organization dedicated to research and education on matters related to insolvency. ABI was founded in 1982 to provide Congress and the public with unbiased analysis of bankruptcy issues. The ABI membership includes nearly 11,000 attorneys, accountants, bankers, judges, professors, lenders, turnaround specialists and other bankruptcy professionals, providing a forum for the exchange of ideas and information. For additional information on ABI, visit www.abiworld.org. For additional conference information, visit http://www.abi.org/education-events.