By Wade Fulford and John Trimble
Social distancing has created obstacles for legal counsel for many litigation tasks, especially mediation. Some mediations are being delayed or canceled. However, for many cases, parties and counsel should seriously consider online virtual mediation. Virtual mediation, although not yet commonplace, can resolve many types of cases. It is not always appropriate, but it has significant benefits, including convenience, reduced travel, lower overhead/costs, a familiar environment, and accessibility for parties with a disability, serious injury or safety concerns. But virtual mediation does have one distinctive disadvantage: the mediator cannot control the parties’ physical environment, which could lead to issues with privacy and confidentiality during the mediation.
Due to the recent surge in virtual mediations in the era of COVID-19, it makes sense to keep in mind tips for mediators and attorneys to help promote productive virtual mediations. Although there are several virtual mediation platforms such as Skype, GoToMeeting, Highfive and Zoom, all references in this article to virtual mediation, features or control settings are based on the Zoom platform.
Tips for mediators
Take time to get comfortable with the technology. Mediators should learn to use the Zoom virtual mediation program and work with its functions and settings. Not only should mediators practice holding mock joint sessions and caucusing, but they also should be able to explain features to the participants. Tutorials and live demonstrations can help prepare for mediation. Familiarity with the platform is extremely important in establishing confidence in the online mediation process.
Know the equipment and environment. Mediators should not only be familiar with the software but also with the equipment they will use for their virtual mediation, including laptop/computers, monitors, microphones, cameras, headphones, and a secure and strong Wi-Fi or ethernet connection. In addition, because the mediator is the face of the mediation, factor in the environment for your virtual mediation, including the background for your camera, lighting and your body language that will help build confidence and rapport with the participants. Zoom allows virtual backgrounds, or a mediator may consider including his/her firm or practice logo on the screen for marketing purposes.
Prepare for glitches. The mediator should be aware that technology problems can (and will) occur. Prior to the mediation, obtain contact information for all the participating parties, including email addresses and cellphone numbers.
Ensure privacy and confidentiality. The mediation “conference rooms” are out of the mediator’s physical control when the mediator is not in the room. As a result, prior communication of the need for privacy and confidentiality are critical. The mediator is responsible for ensuring that the virtual platform and controls provide adequate privacy and confidentiality. For Zoom, it is recommended that mediators use unique and private meeting numbers for each mediation. In addition, the mediator should ask participants to keep meeting information secure and provide participants a password to enter the meditation room. Further, once all the participants have joined the mediation, the mediator should use the room “Lock” control to prevent unwanted intrusions. Additionally, the mediator should admonish parties that they are not to allow nonparticipants to quietly sit in on the mediation by entering a room where the lawyer or party has his or her computer.
Amend your mediation agreement. Mediators who use a formal mediation agreement should amend these documents to cover points uniquely related to unwanted intrusions in virtual mediations. The agreement should include language that the parties have agreed to use the online dispute resolution technology platform, acknowledge that the parties have made their own inquiries as to the privacy and adequacy of the platform for the proposed mediation agreement, and that they will not record or permit recording of any part of the mediation. Further, the parties should agree to inform the mediator of the names and contact information for all participants before the mediation.
Demonstrate technology to participants. The mediator should consider, either in a pre-mediation meeting or in the opening joint session, explaining the virtual mediation software functions and controls such as the video controls, private chat features, sharing documents and help features to ensure the participants are comfortable with the process. This instruction will build trust and rapport with the participants.
Consider the practical details. The mediator should be in contact with counsel before mediation to understand any documents that may need to be shared during the mediation. Zoom is compatible with such programs as Dropbox and Google Docs, but this should be planned in advance. Also, the parties hope to ultimately reach an agreement, so the mediator must plan a reliable process for preparing the agreement and execution by the parties in this format.
Using mixed virtual/telephonic mediation. Based upon the circumstances, type of case and parties involved, the mediator should evaluate whether it would be more productive or efficient to have a mixed virtual mediation. This includes some combination of joint video sessions and telephonic diplomacy. In this format, all the parties need not be tied down to the video format for the entire mediation. The format should be tailored to the parties’ specific needs and wishes.
Tips for attorneys
Consider whether virtual mediation is appropriate for your case. Sometimes a case may not be best suited for this format (i.e., cases where the current condition of the plaintiff and the extent of injuries is a significant issue, or cases where there are significant factual disputes). Think through your case issues and the individual parties to determine whether this is likely to be a successful format for your mediation.
Determine beforehand the documents or presentation materials you will use. Any mediation documents or presentations should be shared with the mediator well prior to mediation to ensure the compatibility and use of material during the mediation. Unlike face-to-face mediation, it will be more difficult and less efficient to utilize and supervise unexpected paper documents during a virtual mediation. The Share Screen feature in Zoom to show documents is very easy, but it requires the item to be in electronic form.
Be responsive to the mediator’s needs. Attorneys should ensure they are responding to all the mediator’s requests prior to mediation, including providing accurate contact information for all the parties involved.
Prepare your client. The attorney should investigate the client’s familiarity and comfort level with the technology and consider requesting a pre-mediation meeting to ensure the client has adequate equipment and to demonstrate the virtual mediation platform features to the client. This well reduce last-minute problems.
Ensure integrity. Every attorney is obligated to ensure privacy and confidentiality during virtual mediations. Legal counsel should make the mediator aware if the privacy or confidentiality of one of the parties has been compromised during the virtual mediation. Prior to mediation, it is important to also make clients aware that recording or allowing other parties to observe the mediation would violate the terms of the mediation process and is prohibited.
Due to ongoing social distancing and the advancements of virtual mediation technology, mediators and the mediation process must embrace this new technology. Even after the current restrictions are lifted, it may be months before counsel and their clients feel comfortable gathering in person and coming together in small conference rooms for an all-day mediation. Virtual mediations are likely to become much more common and preferred by clients. These tips and considerations will help increase the likelihood of success with virtual mediations.•
• Wade Fulford and John Trimble are partners at the Indianapolis firm of Lewis Wagner. Both are full-time trial attorneys and part-time mediators. Opinions expressed are those of the authors.