Virtual Mediations: My Initial Impression: Positive Impressions of Settling Cases Online

COVID-19 has forced mediators to perform their services online. Just in the last month I have taken numerous webinars and reached out to my ADR colleagues to learn how to effectively mediate online and it is truly transforming the ADR field. After having conducted two successful online mediations, here are some initial takeaways:

If back before the world stopped you were planning on mediating one of your cases and you have not yet done so because you have never mediated online, reach out to opposing counsel and discuss online mediation. If the timing was right before, I would strongly recommend proceeding online as originally planned. Perhaps you wanted to mediate before a summary judgment ruling or before expert discovery. If timing was a factor before and the only way to proceed is online, you should consider it because it works.

What about Zoombombing? Is Zoom safe and secure? All mediations should be confidential and security concerns are legitimate. Zoom is not exclusively a legal platform and it was designed to facilitate easy access to sessions. That said, there are ways to ensure security and the ABA believes it to be a safe and effective platform. The mediator/host can choose settings that requires a password for entry. Moreover, once all expected parties have joined the mediation, the mediator can “lock” the meeting so no additional parties can join. I announce when I am locking the mediation. I also prohibit taping or recording mediation sessions and disable such functions on Zoom. Moreover, I have altered my initial retention letter to set forth the ground rules for online mediation and expect all parties to adhere to them in good faith.

So, how does it work? Very much like a “real” mediation. The parties can opt to have a joint session where opening statements are made (something I discuss with all participants prior to the mediation as I would during any mediation). Afterwards, the mediator assigns people to breakout room. As in a regular mediation I typically begin with the plaintiff, discuss the strengths and weaknesses of her case and then solicit a settlement demand. I then go into the defendants’ breakout room and discuss the case as well as their reaction to the settlement demand. I spend the rest of the day shuttling back and forth in separate caucuses. Except rather than walking down the hall, I click a button.

Typically in complex commercial cases the parties might want to show me excerpts from depositions or highlight significant documents to support their case. This can be done online as well. Each party can “share” their computer screen during a breakout room. The other side will not have access to those documents. On the pre-mediation call I recommend to counsel to think about any exhibits that they might want to show me and set up a folder on their computer so they can find them and share them efficiently during the mediation. Of course, if they want to include such exhibits with a pre-mediation submission I will be happy to review them in advance of the mediation. I find that parties that have spent a lot of money on discovery and motion practice often want to see the benefits at mediation. They still can, even online.

One of the most important jobs for a mediator is to facilitate trust with the parties and create an atmosphere conducive of creative problem-solving and flexibility. Admittedly, my initial bias is that this is best done face to face. But all mediations are different. Some are settled quickly while others require multiple longer sessions. Some disputes are personal while others are business transactions. In some cases, person to person interaction will likely assist the mediation process. However, in other cases I believe that online mediation is helpful. People act differently when they can see themselves on their computer screen. While a mediator attempts to diffuse potential conflict and act as a peacemaker, it is not uncommon for attorneys or parties to raise voices, point fingers and turn red in the face. Online we have to do that in front of a mirror. This impacts behavior. Thus, in some cases, online mediation assists the mediator in reducing the overall tensions and hostility and to move the parties closer towards resolution. As I said, every mediation is different and it is difficult for a mediator in advance to know how each one will unfold. Going forward as part of my pre-call I will discuss with the parties whether they have a preference for in person or online mediations. Unfortunately, right now we only have one option, but it is a good option.

If a settlement is reached the parties can prepare a draft and exchange signatures via Docusign or similar programs. Everything can be done online. Going forward it will be an option that I believe will supplement, but not fully replace, person-to-person mediations. And remember when negotiating from your own home, you are not at the mercy of the mediator to provide snacks and lunch! That’s a good thing, because it has been hard to find some of my client’s favorite snacks these days! Hang in there, stay safe and consider online mediation.