No more unilateral remote mediations

Posted Friday, December 6th, 2024 by Gregory Forman

A December 6, 2024 Supreme Court order rescinds a March 19, 2021 Supreme Court order that authorized remote mediations during the COVID-19 pandemic. That 2021 order generally gave a litigant or attorney the right to attend mediation remotely. Rule 5(h), SCRADR allows for online remote mediation but requires consent of all parties or permission of the Chief Administrative Judge. Now, pursuant to Rule 6(b), SCRADR, unless excused by the Chief Administrative Judge, all parties, attorneys, and the mediator must attend the mediation in person unless all parties and the mediator consent.

After the pandemic ended, I continued to utilize the ability to conduct mediations remotely, something I actually blogged about: Why I’m sticking with remote mediations. Lately, I’ve returned to mostly in-person mediations, finding that the benefits of face-to-face contact with the client outweighed the inefficient usage of time. No matter: the option for unilaterally attending mediations remotely just ended.

My dream of retiring to Copenhagen and funding my Michelin restaurant budget through remote mediations suffers a tragic ending.

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Cindy Coker

December 10, 2024 at 3:40 pm

The ADR Commission recommended amendments to the ADR Rules that would allow remote mediation. The Court adopted those recommendations and submitted proposed rule changes to the General Assembly. Those changes went into effect on April 29, 2021, after the 90 day waiting period. The original order rescinded by the order referenced in this blog post was inadvertantly not rescinded when the rules were adopted. The December 6 order was simply cleaning up a previous order that was left hanging. ADR Rule 2(l) defines ODR. ADR Rule 5(h) allows for the mediation to be conducted in whole or in part via ODR with the consent of the parties. If one party does not consent and the other deems ODR necessary, they may make a motion to the CJAP to allow that party to attend via ODR and that order can be granted by the CJAP. ADR Rule 5(h)(2) provides that the mediator shall be in control of the ODR. Mediations and ENE may still be conducted via ODR. That recent order does NOT stop that from happening.

Gregory Forman

December 10, 2024 at 6:16 pm

Cindy, I misread ADR Rule 6(b)(1 & 3)

Jill HaLevi

December 16, 2024 at 3:08 pm

Greg, If you have a chance to amend/clarify your blog that would be great. Lots of people are confused and worried about whether scheduled virtual mediations (scheduled with consent of all parties and attorneys) are going to be cancelled. Thanks.Jill

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