Jeff Kichaven has over three decades of experience mediating commercial disputes. A graduate of Harvard Law, Kichaven practiced as a business litigator for 15 years before focusing full time on mediation. He writes and speaks regularly on the best practices of his field, and is known for facilitating an amiable and respectful process that regularly leads to settlement. In light of the Covid-19 pandemic, Kichaven has moved his practice entirely online, which he thinks may become a permanent option for this type of work even after the lockdown is lifted.
Lawdragon: How is the Covid-19 crisis affecting your practice?
Jeff Kichaven: All mediation is now online! Zoom seems to be the platform of choice, and after a few hours of practice, I feel in control of the bells and whistles. A nearby smartphone, for one-on-one back-channel texting and voice, makes our online mediations even better.
Is it as good as in-person mediation? Honestly, no. For now, though, we declare it pretty darn good, and we make it work because we have to.
LD: What other steps are you taking to continue providing services during lockdown?
JK: All mediation is now national, and even international! When all mediation is online, your mediator can be around the corner or around the world. With my market now expanded to the entire country and beyond, I have taken steps to reach out. And it’s easy. Virtual coffee breaks and happy hours are multiplying. People are spending more time on social media. Sometimes, with friends old and new, we even talk on the phone.
My approach to marketing has always been simple. If I hold myself out authentically and consistently, I will find the clients for whom I am right. Over the last few weeks, it has been wonderful to learn that they are all over the world.
LD: Are you seeing any new anxieties with your clients in these adjusted operations?
JK: Some clients are anxious about whether online mediation is secure. It’s a legitimate concern. Of course, email and cellphone calls are not perfectly secure, either, and we use those media for sensitive communications all the time. While security is never perfect, I believe the online media are reasonably secure, too.
First, the online platforms are now running enormous businesses, and they are devoting substantial resources to enhancing their security.
Second, I add additional security to online mediations in at least three ways: I use passwords to limit access to the online meeting room; I use the “waiting room” feature which requires me to admit people to the online meeting room one-by-one; and I use a randomly-generated custom identification number for each online mediation’s meeting room, which helps prevent an attendee at a previous online mediation from entering another one later.
And of course, I disable the recording function, and ask every participant to agree not to record or memorialize the mediation in any way other than by taking the sort of personal notes they might take in a face-to-face mediation. If your counterparties won’t agree to that, you probably shouldn’t be mediating with them in the first place.
LD: Do you think we’re seeing the wave of the future here?
JK: Yes. Online mediation is here to stay. Or at least it’s not about to disappear. Online mediation will come to be considered in every case, just as face-to-face mediation came to be considered in every case 25 years ago.
But online mediation will not become a one-size-fits-all solution. Indeed, nothing in mediation should be one-size-fits-all. Lawyers will have to decide on a case-by-case basis whether a particular mediation should proceed face-to-face or online.
The cost-saving and other pluses of online mediation will have to be balanced against the minuses, such as the sometimes awkward and stilted nature of online communications. Every case will present its own unique challenges, and its own unique solution.
LD: Are you seeing new types of claims right now?
JK: The types of claims on my docket change constantly. This has been true for my entire 25-year mediation career. What do I see on the horizon? In business contract disputes, force majeure defenses. In insurance coverage disputes, business interruption claims. In the employment arena, return-to-work and return-to-school issues.
That’s what I love about my career. I’m always learning something new. It calls to mind one of my favorite quotes, from Heraclitus, and today it’s as true as ever: “The only constant in life is change.”