In the midst of the Covid-19 crisis, our gravest concerns are for the health and well-being of everyone in our community. While the crisis swirls around us, we all must be committed to doing everything possible to endure what is undoubtedly the worst public health catastrophe of our lives.
It is unclear, however, how long the pandemic will last. If our economy and infrastructure are to survive, mechanisms for conflict resolution must be available. Companies and individuals must resolve conflicts to protect property as well as individual rights. Conflict resolution will allow people to carry on their work, pay their employees, and run their businesses.
Perhaps one of the few silver linings of this crisis is that it is occurring in an era of readily available virtual communication, through Zoom and similar technologies.
Preparation for a Virtual Mediation
Like everything else we do in litigation, there is a significant correlation between preparation and success. The more a lawyer prepares her client for the mediation, the greater the likelihood of a positive result for the client. There are, however, unique considerations when preparing for a virtual mediation.
Pre-Mediation Call Regarding the Virtual Mediation Process
The pre-mediation call between lawyer and client is essential to the success of the virtual mediation. Explain that the mediation may include a pre-mediation session with the mediator. One of the disadvantages of virtual mediations is the challenge for the mediator to establish trust and rapport with the client. If this concern is heightened in a particular case, consider including the client in a virtual pre-mediation conference with the mediator. Encourage your client to ask questions and get to know the mediator.
Inform the client that there will be plenty of opportunities for private communication during the virtual meditation. Discuss with your client and the mediator the expectations regarding confidentiality and how that will manifest in a virtual mediation. Address who needs to be present at the virtual mediation for your client and for your opponents. Confirm their availability.
Procedures Unique to Virtual Mediations
Prior to the mediation, counsel must discuss the specific technology for conducting the mediation with the mediator and with clients. Counsel should ensure that everyone is comfortable with the technology. A dress rehearsal or “mock” mediation might increase confidence in unfamiliar procedures.
Remind your client that attire should be appropriate for the occasion and discuss the background that will appear behind the camera. Confirm that your client will be in a room with no background noise, and that your client has adequate WiFi. Create a plan in the event that the technology fails or is interrupted. Consider time zone differences when scheduling the mediation. Obtain back-up phone numbers.
The parties must set aside a specific amount of time to devote to the mediation, without interruptions. This can be a more difficult commitment when parties participate from their own offices where phones and computers can easily distract. Get a commitment from everyone involved to decline unrelated calls during the mediation and to avoid multitasking, at least when the mediator is working with that party.
Have a plan for confidential communications with your client during the mediation. Is a second private virtual breakout room a reasonable option? Or would your client feel more comfortable simply texting, IM-ing or emailing you during the meeting? In addition, cell numbers of counsel and the mediator should be exchanged to allow texting during the conference, if necessary.
Collect and Share Information in Advance of the Virtual Mediation
Parties should consider sharing documents in advance of the virtual mediation. Confirm that the information is available in an electronic format that is easily shared through email or a portal, such as Dropbox or Google Drive. If there are confidential documents to be shared only with the mediator, set up a separate procedure. Focus on documents or databases that address damages.
Counsel should evaluate whether the damages information will be easily understood by others or whether expertise is required. After liability issues are discussed, damages evidence often steers the mediation to a more objective evaluation of the case. By sharing information in advance, issues involving the format or interpretation of the information can be resolved prior to the mediation. If it is necessary to review a particular document during the mediation, however, it is a good idea to have an old-fashioned paper copy available, just in case technology unexpectedly fails.
Any potential written settlement agreement should be circulated in advance of the mediation. The parties should anticipate that edits will be shared electronically during the mediation.
The Virtual Mediation
After thoughtful preparation, the virtual mediation itself should seem easy and comfortable. Typically, parties prefer separate caucuses. Virtual teleconference technologies like Zoom permit the mediator to create separate “breakout rooms” to house parties and lawyers. In a virtual mediation, it is relatively easy for the mediator to move between separate breakout rooms to hold private conversations with parties and counsel. In the event a joint caucus becomes necessary, the breakout rooms can be closed and everyone can become part of a joint meeting.
If the parties resolve all the material terms in dispute, the best procedure is to complete the written agreement, and have it signed by the parties who are present. This can be accomplished through “DocuSign,” a program that allows parties to e-sign a document through a shared portal. If it is not possible to complete a written settlement agreement, the parties should agree that all material terms are resolved and memorialize that final agreement in a term sheet.
Most mediators would agree that an in-person mediation is the ideal way to proceed with mediation. But we are living in far from ideal times. For the moment, and to allow the important work of conflict resolution to proceed, virtual mediations may offer a reasonable alternative to resolving your client’s disputes.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Hon. Suzanne Segal (Ret.) is a mediator and arbitrator with Signature Resolution. Prior to joining Signature, Judge Segal served as a Magistrate Judge for 18 years with the Central District of California.