I have been mediating cases online for a couple of months now. This has worked surprisingly well.
There is a learning curve for the mediator, who acts as host and so must be familiar with the technology and occasionally how to fix problems with it. But, fortunately, after a few online classes and a few hours of practice, mediations can be almost technically seamless.
You may find my description of a recent session of interest. Of course, mediations are confidential, so my description must be very general and can’t reveal anything substantive about the case. Still, there are some lessons to be learned.
The logistical challenge
The mediation presented a logistical challenge because there were multiple plaintiffs and defendants. We used the Zoom platform, which was up to the challenge. At the opening session, there were over a dozen participants. Each was identified by name on the screen on what looked like a giant version of Hollywood Squares. Everyone was available to participate.
Overcoming a glitch
There was one slight glitch at the beginning. One party was not able to get online with camera and all. We were able to work through that using a conference call on a separate phone, and everyone could still be heard.
It is worth mentioning that if a participant wants to call in by phone, they now must enter a password to get in. If they enter through their computer by clicking a link, that isn’t necessary as of this writing. But Zoom has been tightening up its policies lately, so you will need to keep up with any changes.
A useful platform for mediation
The Zoom platform has features that work well in mediation. You may have heard of “Zoom bombing,” where someone manages to get into a Zoom session who does not belong there and disrupt it. This need not be a problem. The host/Mediator can set each session to have a waiting room, so no one can enter unless the host/Mediator lets them in. The host can also remove people from meetings. I haven’t had any Zoom bombing of any mediation sessions.
Zoom’s “breakout room “ feature is vital for mediation. The Mediator/host can assign each side their own breakout room and place them in the room for caucuses and private sessions with the mediator. No one can come into the other parties’ breakout room without the Mediator placing them there, and no one can listen in. The Mediator can enter a breakout room, but he or she is instantly seen. I always announce when I enter so as not to overhear anything I shouldn’t.
The Mediator can also place participants back in a full session with everyone present if need be. Or the Mediator can create new breakout rooms during the session for meetings with subgroups, with just counsel, or other groups as appropriate.
Zoom’s document sharing feature is quite useful. With just a little practice, a party can share a document with the group. In our case, a particular financial document was of interest in examining financial aspects of the case and possible settlement. That could be shared over the system so everyone could see it on their screen. Mediators can also share any written memorialization of settlement terms with everyone so counsel and the parties can discuss the language they believe best captures their settlement. Of course, documents can also be shared by email of a document sharing system like Dropbox or the more secure versions many firms have if people are more comfortable doing it that way.
It is to everyone’s advantage to capture as many of the terms of the settlement as possible in writing after a matter settles at mediation. Often, we are able to prepare a complete settlement agreement during the session, have the parties sign it, and email it back to all. The multi-party case mentioned above had a more complex settlement. It took additional negotiation over a number of days to finalize it. But the basic outline of the settlement was in place late in the first day of the mediation. As in all mediations, persistence and follow-up (some might call it nagging) by the Mediator may be necessary to get the settlement completely done and documented.
Anticipating possible problems
There are a few things to watch out for in online mediations. First, it is critical to pay attention to confidentiality. The host/Mediator can set the Zoom platform to disallow any use of Zoom to record, which I did. Of course, someone could still use a recorder on their cell phone or an external recorder. To handle that, the Mediation Agreement required all parties to agree not record. Parties are also cautioned to be in a private setting. We also went over the ground rules about the use of technology during the opening session in addition to all the other ground rules that apply to any mediation.
Second, technical issues seem, for some reason, particularly annoying online. I therefore encourage the lawyers and their clients to test their equipment and connections in advance of the mediation. With the one exception I noted, everyone found the platform quite easy to use. Occasionally, someone had to sign back in, but that is easily handled. We also provided backups. I had my cellphone right with me, so people can call with any problem. Zoom also allows people for whom video is a problem to call in by phone, although they need to enter a password. Of course, video for all is the best way to go so the nuances of communication are not lost. A large percentage of communication is by facial expressions and gestures. But having a technical backup puts everyone at ease
A word to the wise
Most computers now have cameras and microphones. And most people are familiar with how they work. But participants should pay attention to how their computer and camera are set up.
Zoom allows folks to test their camera and microphone before entering the conference, using the arrows on the bottom next to the camera and microphone icons.
Zoom also allows folks to see how they will look on screen. It is worth taking some time to do that. People aren’t at their best if they are backlit and in shadows, if their background is cluttered, or if their camera is too low. The latter is a common with laptops. That’s why you often see TV news reporters doing online interviews with their laptops propped up on books for a better angle.
Keeping mediation moving
Online mediation is effective, and in my experience, participants find it quite intuitive. With just a little extra planning and practice, we can keep mediations going forward during these unprecedented times.