We have all had to embrace virtual life including, virtual conflict resolution of legal disputes due to the pandemic circumstances. I recently reflected on my virtual work over the last year and decided to write down what I have learned as a “virtual” mediator.
A virtual mediation or hearing can feel like a conference call because you joined the meeting from your computer and did not travel to the meeting. I think that it takes a little more effort to get into the right mindset for a virtual process. When preparing your client for a mediation make sure your client is aware of the possible outcomes at trial and considers possible settlement scenarios. Parties and lawyers are more likely to reach settlement if they logon to the session with open mind. Positive outcomes are not possible, if lawyers and their client’s logon to the mediation with the view “that this case can’t or won’t settle”. Approximately 96 % of all civil cases settle at some point, so why not make the mediation session more than just a step in the litigation process. A mediated settlement on terms devised by the parties is often more satisfactory than an adjudicated outcome. If settlement is not reached the process also provides opportunity to learn more about the case.
Some Practical Considerations and Tips
Virtual proceedings are more intimate and as a result we have to be more aware of how our verbal and non-verbal communications are perceived by the others. Before the joining the session check your lighting, your background, the tilt of your screen and what you look like (No cat filters please!). Is your face too close to the camera? What do you sound like? Remember to talk into your camera rather than the video display of another monitor. Consider how your tone, volume and body language may affect the others and take the time to prepare your client on these items as well.
In addition to the mediation agreement, the parties should also adopt written online guidelines setting out the technical requirements for the platform used, how invites will be sent out, a contingency plan for a technology failure, confidentiality agreements, and basic communication ground rules. I have a set I send out with my mediation agreement.
Although it seems we have been using Zoom or other similar video conferencing platforms forever, I always run a technology test a few days before the mediation sessions with lawyers and their clients to make sure everyone is familiar with how the virtual platform works including how to logon, unmute, enter and leave a break-out room and share a document. Inevitably there will be someone who is not completely familiar with the technology, or a lawyer/party that may want to re-think how they will share documents.
During the Mediation
Patience is required by everyone, as in my experience, virtual mediations take more time. As there is no physical location, there is no opportunity to exchange the usual pleasantries. As a result, it takes longer for the mediator to build rapport and trust with the parties and if necessary, to lower anxiety levels. This means in practical terms, that the initial group and break-out meetings may be longer than you expect to ease people into the process. As a result, I regularly recommend, that counsel consider full day virtual mediations to allow more time for these things.
As a mediator I have learned that in virtual mediations, I have to be more pro-active and move back and forth between break-out rooms more frequently to provide progress reports. It’s often difficult for parties to wait on a zoom call with no action for more than 25 minutes. Break-out rooms are essential for the mediator to discuss a position taken, test it and to discuss offers. In these break-out sessions it helps the mediator if you can outline the principles behind your client’s offer, so that the mediator can explain the offer to the other side.
If we continue to embrace virtual mediation and if the conflict level between the parties is manageable, I believe more group caucus time can help the parties stay engaged and committed to the process.
I also recommend that lawyers consider letting their clients speak in the group caucus and to the mediator. The mediation provides your client with an opportunity to say what they feel is important for the mediator or other side to know and to be heard which can move the matter towards productive settlement discussions.
Other mediators have told me that they find they are making more mediator proposals and following up more with counsel after virtual mediation sessions. I wonder if increased mediator intervention in the virtual process is required because parties are not as engaged in the remote process. I also believe that lawyers are working harder at virtual mediations to keep their clients at the table especially in break-out rooms.
When a settlement is reached, it is essential that it be documented and signed by the parties during, the mediation session, otherwise parties have an opportunity to renege from the deal. Electronic signatures on the terms at a bare minimum are required during the session to be followed by formal Minutes of Settlement. Do not walk away without a signed agreement, you do not want to find yourself at odds with your client about that terms of an agreement resulting in a difficult position that may require that you withdraw from the retainer.
Finally, during the pandemic, virtual proceedings including mediations have been an important part of providing access to justice, with the reduction in the matters that can be dealt with by the courts. After the pandemic, I believe that virtual proceedings and mediations will continue to provide a valuable service especially if parties are in different locations, if the dispute is high conflict or physical accessibility issues are present. That said it apparent that affordable stable and, high speed internet must be available to all litigants for virtual proceedings to truly provide access to justice.
From my perspective virtual mediations, like in person mediations can result in positive outcomes if the parties arrive prepared with an intention to try and resolve the issues. I certainly look forward to the day we can have the choice to attend a mediation session in person or virtually and I believe either option will be used after the pandemic.