I recently heard from an attorney regarding the use of telephonic attendance in Florida workers' compensation litigation. In the spring of 2020 COVID-19 drove me to mandate telephonic mediation. This decreased the infection risk for everyone, minimized travel, and allowed us to continue operating smoothly.
Believe it or not, some said (essentially) "it will never work." Remember when Orville Wright similarly assured that no plane would ever fly over the ocean? Well, he was wrong, and telephonic mediation has worked fairly successfully. In fact, anecdotal reports support that resolutions are being reached in a significant number of instances. There are some hiccups, discussed at the end of this post. After returning telephonic to mediator discretion, I mandated telephonic mediation again on July 1, 2020 (through the end of July). Stay tuned for updates on that.
The attorney who emailed me was critical of the discretionary nature of such technology under our rules generally (before the mandate, before COVID). Rule 60Q6.110(5) says:
"No party shall appear at the mediation conference by telephone unless such appearance is approved in advance by the mediator."
Thus, in normal times, the default is to live appearance and various attorneys and others seek specific permission for telephonic attendance on a case-by-case basis. Much of the foundation for returning to mandatory in July is the sheer volume of such requests that persisted in June. Our mediators have much to do, and relieving them of that volume of correspondence while bringing uniformity to the customer just makes sense.
But, when telephonic is discretionary, this attorney sees indicia of unwaivering denial of telephonic appearance by some mediators ("_________ never allows telephonic attendance"). There is a perception expressed that some are presumptive and/or unreasonable in their denial of telephonic opportunities. Thus, the attorney finds her/himself persistently filing motions for such permission after informal denial (this begs the question of whether a Judge has the authority to overrule that discretion, but that is a topic for another day). This attorney advocates the amendment of our procedural rules, to mandate the free option of telephonic appearance for any attorney or party who desires the same.
I have written before about the fact that none of us can ever be sure we have any idea what other people are going through. Ensconced in, and distracted by, the challenges of our own day-to-day, we lack a factual foundation regarding what other people's troubles may even look like. In the era of COVID-19, we are reminded that people's individual medical conditions may impact their susceptibility to and reaction to COVID-19.
The Centers for Disease Control has urged Americans to limit their exposure to large groups. There are also specific warnings regarding people who have medical conditions, and who are “mature“ (I recently was told about a warning for the “elderly,“ and the ages provided as an example included me. I am not “elderly,“ and being called that hurt somewhat. Even Judges have feelings). Thus gathering for mediation may present risks even in the roomiest of facilities. However, some of the mediation breakout rooms were not designed with a six-foot social distancing requirement in mind. And, many who attend mediation bring a spouse, child, or neighbor to support them. Rooms can get crowded, waiting areas congested, and there may an elevator to share.
But, that may be just as true in a general sense without COVID. Some may struggle with medical conditions that are just as travel-challenging persistently. There are a variety of reasons a physician may advise against travel, crowds, and general exposure (colds, flu, pollen, the list goes on). Let's consider them momentarily.
This attorney described the motion process. The lawyer lamented that the process as regards telephonic appearance starts with a written request to the mediator, who is perceived as a "presumptive no." From there, the method for obtaining relief centers on filing a motion, and asking a judge to grant dispensation (following the mediator's "no"). The lawyer pointed out that her/his private medical information should remain private, and that she/he should not be forced to disclose their risk factors, conditions, or other intimate details to gain permission to appear by telephone. There is merit in that contention of a right to privacy. One might contend that a lawyer should not have to "leave their right to privacy at the courthouse door."
This lawyer noted, essentially, that my mandate of telephonic mediation was perceived as protecting OJCC staff. That is fair, though I was simultaneously striving to protect all of you also. She/he argued that I was protecting OJCC staff without their individual medical histories or risk factors similarly becoming exposed to scrutiny. In other words, She/he thinks that I am protecting the mediators for all the right reasons in this COVID time, but feels I do not similarly protect all the parties and attorneys in non-COVID times. That is fair also. How would a mediator, seeking to conduct by telephone, feel if she/he had to publicly document medical conditions as an explanation for directing the public to attend by phone? That is a fair question.
In the course of 2020, we have each likely encountered COVID-19 personally, or tangentially. If we don’t know someone who’s had it, the odds are that we are connected with someone who does. I have heard from individuals who are striving to avoid personal contact. We have heard nothing but praise for the initial reaction to mandatory telephonic mediation, both from mediators and parties. But would it be appropriate to change the rules so that the telephonic is our persistent and usual default?
The lawyer admitted that there may be those who seek telephonic mediation as an avoidance. There may be those who are disrespectful of the process, and nominally attend by telephone while in reality instead sit elsewhere focusing their attention on other matters (on a computer, on driving, on watching a ballgame). This attorney believes that the perceived presumptive "no" results from the lackluster participation of some who attend telephonically. But, that some are not effective or even enthusiastic or attentive in telephonic appearance should not work to the detriment of all (requests should be on a real case-by-case consideration not a presumptive "no").
Shall we doubt all requests therefore as a result of the actions of a few? Shall we doubt those with genuine concerns, because others act out, or fail to act at all? Or, shall we pull together as a community and concede that some people have genuine individual concerns and needs? This attorney notes that she/he includes good faith ("opposing counsel agrees") in many denied requests. Might a mediator be willing to make a phone call if an attorney's request said "For medical reasons, I am seeking permission to appear by telephone, please call if questions." Might that conversation be a more appropriate opportunity to discuss medical issues than in a public document? Might someone's personal information be preserved and respected more readily?
Those decisions are not mine in a general sense. Though, that might support a change in the rules at some point. Currently, the rules vest those decisions in the sound discretion of our mediators (and perhaps arguably judges). For now, we are back in mandatory telephonic mode. But, when we return, I have faith in them, their discretion, and their professionalism. This post may remind us all that it is disconcerting to face medical issues and risks. It is quite possible to be medically advised against travel, crowds, exposure, and more. We have all learned from COVID-19, will compassion be part of our benefit?
I have faith in our mediator's willingness to consider case-by-case requests. Their discretion is sound, and I lament anyone perceiving that there is some presumptive "no" awaiting their request. Any appearance of that is unfortunate and should concern us all. Similarly, I have faith in those who would ask for accommodation. I believe that many would be frank, open, and appropriately ask only when it is truly needed. Needed not so that one might multi-task. Needed not because one doubts the chances of success. Needed because exposure or travel presents a real and present risk or danger to someone.
If there is a good reason to appear telephonically, say so, or ask for a telephone call from the mediator so that you might say so. It there is good reason, first obtaining opposing counsel's consent can only be a positive factor in the request. In the end, if there is a perception of the "presumptive no" by some person or in some jurisdiction, feel free to call or email me to discuss. In the end, our customers are not an interruption of our workday, but are the purpose of it.
For now, there is mandatory telephonic. When that concludes, we will return to a rule that vests discretion in the assigned mediator. As Falstaff noted eons ago, "discretion is the better part of valor." That is, discretion is caution, consideration, and thoughtfulness. It is my hope that requests for accommodation are duly and thoroughly considered on their merits. Similarly, I would hope that those who seek accommodation employ a sound process (discuss first with the opposing party, express the reason, or ask for a phone call to do so, etc.).
Litigation, by its very nature, is adversarial, challenging, and frankly sometimes exhausting. There are stressors, surprises, and uncertainties. Let's all remember that we have a common goal in mediation, and working together will best facilitate the communications and considerations that make mediation so successful in our workers' compensation community. Consideration for, attention to, each participant has value. Let's all work together when we can and keep accomplishing the great results that have become our hallmark. And, please don't call me "elderly."
