From Saturday Night Live to the elementary school classroom, it seems just about everyone is living on Zoom. Much has been written about virtual trials, but this focus ignores the generally accepted statistic that 97% of all civil cases are resolved other than by trial.
Virtual mediation is becoming the norm and may stay with us long after the Covid-19 pandemic passes.
Below are some practical tips to maximize the virtual mediation experience, looking at: (1) preparing properly in advance; (2) changes to expect on-line; and (3) knowing when it’s over.
Preparing Properly in Advance
In a live mediation, much thought is given in advance to who should physically attend. Sometimes the final decision maker is unable to attend in person, requiring that “one last call” to the insurance adjuster or client decision maker as a buffer to final settlement numbers, offers, counter-offers, etc.
In a virtual mediation, there is an unspoken expectation of immediate availability of all persons and instant access to information and the client. Therefore, it is more important than ever to have an understanding of final settlement authority before the mediation, as there is less opportunity for private back-and-forth discussions with decision makers during the mediation itself.
One also must consider the importance of a joint introductory session. In a live mediation, we often insist upon a brief “joint session” at the start of a mediation, that serves as an opportunity for each party to outline its case, present its key evidence, etc.
This helps the mediator better understand the case and allows each party to consider the best evidence and arguments presented by the opposing party. It also provides many plaintiffs their “day in court,” to allow them to reach closure during a mediation, rather than seeing the day as just about trading dollar numbers.
In the virtual sessions, we have noticed mediators moving away from joint sessions. Perhaps this is due to technology limitations, or because the mediator believes the joint sessions are not as effective in a virtual setting. Regardless of the reason, consider asking the mediator in advance to begin the mediation with a brief joint session so the parties can introduce each other and lay the groundwork for a successful resolution of the case.
Changes to Expect Online
The virtual setting is obviously different from gathering in a room, which has changed the dynamics of the mediation itself. The Zoom boxes are a great equalizer. In a live mediation, the attorneys in the room tend to be more prominent. Their clients sit next to them and speak when spoken to, but do not often interject or take the lead.
In a virtual mediation, however, all participants are in the same-sized box on a computer screen, with clients typically in their own home or office setting apart from their attorney. We have noticed that clients are taking a more active role in virtual mediations, perhaps due, at least in part, to the more equal way in which participants appear in the “room.”
A unique challenge posed by virtual mediation is the participants’ inability to know when the mediator is going to return to the “room.” In a live mediation, attorneys and their clients discuss all types of things during “down time” when the mediator is not present. There is always fair warning when the mediator returns.
In a virtual mediation, Zoom breakout rooms currently do not have a “knock” feature. Therefore, you have no warning as to when the mediator is going to re-enter the room. We have seen some mediators collect cell phone numbers in advance of the mediation and text participants before re-entering the breakout room. This allows participants to stop all irrelevant or confidential conversations and better prepare for the next session with the mediator.
In addition to the visible Zoom Security settings of “Enable Waiting Room” and “Lock Meeting” to monitor participants, Zoom has added many non-visible security features since the pandemic began to ensure privacy. Nevertheless, clients and counsel have expressed concern that “break-out” rooms are not truly private and that outsiders may be privy to conversations that occur within the rooms. While this may not be the case, you may want to consider holding highly sensitive attorney-client conversations outside of the Zoom and over the telephone to alleviate any concerns.
Finally, while it may seem mundane, counsel should consider how best to approach lunch. In a live mediation, there is typically no formal lunch break. The parties eat in their separate breakout rooms and the mediator continues to discuss the case. Oftentimes the mediator will join one side or the other to continue discussions over lunch.
In a virtual mediation, however, participants need to physically get up from their computer to get lunch and may not feel comfortable eating on a computer screen. Consider arranging a formal lunch break to allow the parties (and the mediator) to freely “log off” during lunch and eat privately before resuming the mediation.
You might also ask the mediator to confirm other short “stretch breaks” when parties can log-off without fear of missing an important discussion.
Knowing When It’s Over
A live mediation may be forced to end at a certain time when one or more participants has to leave to catch a flight or train. This often results in a last-minute scramble to “get the deal done” within the last 30 minutes of the mediation. This same scenario does not exist in the virtual mediation with all participants in their homes or local offices, resulting in less urgency to finalize negotiations by a certain time.
Consider letting the mediator and opposing counsel know mid-day that you have another obligation that will require you to end the mediation at a particular time. This will help to better focus the mediator and the parties on working towards finalizing agreements.
What do you do if the parties reach an agreement? In a live mediation, the parties often physically sign a short paper term sheet memorializing the outcome before departing. In a virtual mediation, if the parties reach a resolution, it is helpful if the mediator emails an agreement to all participants before everyone logs off.
The parties and their attorneys can review, e-sign, and return the document to the mediator before ending the session. After the Zoom is ended, the parties can draft and sign final settlement papers in the following days as usual.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
David L. Ferrera is a partner in Nutter’s Litigation Department and chairs Nutter’s Product Liability practice group. He focuses on working with Fortune 500 medical device and pharmaceutical companies in presenting complex product liability issues to lay juries and courts. He works with in-house and outside counsel in Canada, Europe, and Asia-Pacific on litigation issues affecting their multinational clients.
Katy O. Meszaros is of of counsel in Nutter’s Litigation Department and a member of the firm’s Product Liability practice group. She focuses on FDA regulations and documentation, complaint reporting, operating room protocol, and other issues related to the design, manufacture, and sale of prescription drugs and medical devices.