Virtual mediations are here to stay, at least for the foreseeable future. Undoubtedly, there are benefits to virtual mediation, such as the comfort of home, cutting out travel as well as room fees, and ease of scheduling. Luckily for lawyers and clients alike, virtual mediations are not all that different from those conducted in person. Nonetheless, now that they have become commonplace, it is important to know and get used to some of the new wrinkles virtual mediations can present.
With that, let’s look into what helps make a successful virtual mediation.
Prior to the mediation, lawyers should speak with their clients to ensure they are comfortable with the software being used. Let’s face it, it is likely Zoom. Prior to the date, lawyers should ensure their clients have downloaded the software, and have a workable device, like a computer or tablet, that has functional video and audio.
Although many people have used some form of tech to communicate virtually, some may not be familiar with certain features of it. It is important to highlight the key functions that will likely be used during the mediation. These can include: turning video on/off, turning audio on/off, entering and exiting a breakout room, speaker view vs. grid view and share screen.
Clients need to know that they can turn off their video and audio during breaks, and also that their lawyer may need to “step out of the room” with the mediator or other party’s lawyer to speak privately.
Lastly, the host, who is likely the mediator, will need to let the parties enter the mediation after initially joining. Your client should know to connect about 10 minutes before to ensure the software is running smoothly. Depending on the setup, your client should know whether there will be a plenary or caucus at the onset of the mediation, where they will encounter and see the other party’s representative(s).
DocuSign type software may also be used for ease of signing settlement documents. Accordingly, ensuring your client has your preferred software for this is advisable as well.
A call before the mediation, or a quick test run using the software with your client can help to sort all of this out.
Steps of mediation
Mediation is an important step in litigation and can be a day that clients have waited on for some time. Accordingly, clients should receive some guidance as to what the mediation will look like. This can include:
The reason you are there, which is to explore the possibility of settlement and concluding the lawsuit;
The role of the mediator as a neutral third party, whose job is to try to facilitate settlement;
The legal arguments that underpin the litigation and relevant facts that the client can speak to;
What a settlement can look like, and what happens if the parties settle (i.e. ending the litigation, disbursement of settlement funds, release language, etc.; and
Next steps in the litigation if the parties do not settle.
Finding a quiet space is also important when mediating online. This also means that the client must be in a private and secure space. So, that means no coffee shops or places with public Wi-Fi. If a partner or support person attends with your client, they will also need to likely sign the mediator’s agreement and be subject to a confidentiality clause. Also, since your client will be in their own space, they need to know that the mediation cannot be recorded.
If your client is at home, it is also worthwhile telling them to conduct the mediation in a quiet, private room. While people are fairly understanding if a child or pet sneaks onto the screen here or there, you do want to ensure that client is in a room conducive for concentration and contemplating settlement. Background noises and visual distractions should be as minimal as reasonably possible.
Virtual mediations also require patience. Oftentimes, there can be an audio lag that results in people speaking over one another, which can be avoided by letting the speaker conclude their thought prior to responding. Further, since this is all done on a screen, it is easy enough to get tempted to look at e-mails or attend to some other work. It is best to try and avoid this and concentrate on your client and mediation throughout the process.
Some things are just harder to do over the computer. Flipping back and forth between pages, or having chats in the hallway is not possible when mediating online. So, some extra preparation is needed.
If you know you will reference certain pages in a mediation brief, you should make note of the PDF pages you want to bring the mediator or other party to, not necessarily the actual page number in the brief. Also, it is sometimes useful to exchange phone numbers with the mediator and/or opposing party’s counsel prior to the mediation, in case you lose connection or need to have a discussion.
Finally, if a settlement is reached, it can take some time to agree to the terms. In this regard, it is useful to have draft minutes of settlement prepared to save time. Changes to the minutes can be exchanged via e-mail and with track changes.
If the virtual meeting has ended and counsel are continuing to negotiate some of the more minute terms, it is also a good idea to keep the mediator appraised of the settlement once it is finalized.
If enough preparation is done prior to a virtual mediation, it should run just like an in-person mediation (Internet willing). While we are all hopeful to be able to get back to conducting in-person mediations, virtual mediations may become the new normal, or even preferred way of conducting them. In this regard, it is always helpful to ensure your clients are comfortable with the software and know the steps of mediation to ensure it runs smoothly. Keeping these tips in mind will hopefully help achieve this.
This article was written by Kevin Wisnicki and originally published by The Lawyer’s Daily on September 18, 2020. Kevin Wisnicki is an employment lawyer at Monkhouse Law.
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