The COVID-19 pandemic has required counsel and parties to mediate using videoconference. Oregon mediators have completed numerous mediations by video conference. While in-person mediations are ideal, video mediations are working well. My experience and some early national data is that the settlement rates are the same as compared to the traditional in-person mediation. Of course, I am still a bit skeptical considering we are at the early stage of this experiment.
At some point the pandemic will pass, and we’ll have the ability to return to our pre-COVID-19 practices in trial preparation and mediation. In the meantime, video mediation is a reality and will likely play a significant role in future mediation practice even after the pandemic. This article covers the advantages and disadvantages of video mediation and some effective practices to consider.
Video mediation occurs on a video conference platform rather than in person at an office.
The video mediation can occur in a hybrid format in which some of the participants meet in person and then jointly participate in the video. Many video platforms exist and include Zoom, Webex, BlueJeans, GoToMeeting, Google Hangouts, etc. This article covers Zoom features because my experience is predominantly with Zoom video conferencing. Zoom is becoming more widely accepted as a secure, stable and user-friendly platform. JAMS, a national ADR service, uses Zoom for its mediations.
The basic video mediation format is that each participant clicks a link to join the video conference hosted by the mediator, one of the lawyers or a third party. As a Zoom security feature, the host admits each participant from the virtual waiting room and assigns them to their side’s virtual “breakout” room. Once in the breakout room (visualize “Hollywood Squares”), the participants converse with one another as though they were in their private conference room.
Thereafter, the mediator moves between or among the private breakout rooms. If the need arises for the opposing lawyers to confer directly, the mediator can assign them to their own breakout room to caucus and then return them to their primary breakout rooms. In breakout rooms, the participants can share documents with one another on the screen. If a settlement is reached, it can be reduced to writing and digitally signed using a web-based service such as DocuSign.
As with nearly every approach in legal practice, tradeoffs accompany the use of video mediation vis-à-vis the traditional in-person mediation. On the positive side, video mediations are easier to schedule and have less travel costs as participants can participate from their personal devices. Video mediations also can provide some human dimension that cannot be found in a conference room at a lawyer’s office. Video mediations inevitably feature someone’s beloved pet or inquisitive child. Some parties feel less stressed on a video at home as they are not going to pass the opposing party in the hallway of an office.
Of course for every advantage of a video mediation, a disadvantage may arise depending on the unique circumstances of the case and parties. The lower barriers to participation in a video mediation may take away that “sunk cost” of time and effort that is needed to commit the parties to the process and reaching a settlement.
Video mediation also can lower the quality of communication between a lawyer and client as well as with the mediator because the non-verbal communication is suppressed by the video medium. Distractions exacerbate the communication challenges. A participant’s focus on the process can be diminished if they are interrupted by co-workers, family members, delivery service, pets, etc.
Studies have already shown that the videoconference can be fatiguing to the brain. The video medium requires us to focus more intently to absorb information from the conversation, especially the non-verbal information. Perhaps this negotiation fatigue is often good for ultimately achieving resolution when the parties are in person, but the video mediation format makes it easier to walk away.
Video mediations require some special planning and preparation. The technical logistics include doing a practice session with the client in the days before the mediation. This ensures that the client has a suitable device, internet speed and a quiet and comfortable location for the mediation. The device may be as simple as a smartphone or laptop. Platforms have various minimum internet speeds that can be determined with a quick Google search. Use www.fast.com to test the internet speed.
Even with the best internet connections, sometimes the video can temporarily slow or freeze. This speed problem often is related to the internet itself rather than the individual user’s connection. Once in a while a participant has a connectivity problem that is resolved by disconnecting and rejoining the meeting again with the same video link. If all else fails, the participant can just call into the meeting as they would into any conference call. My experience is that if the lawyer and client do a practice session, any technical issues are resolved by the time of the mediation.
Video mediations require a little more preparation because the video format seems to slightly slow the negotiation and communication. This constraint can be easily overcome with a few simple steps in advance of the video. First, the mediator may want to confer with counsel for each party by telephone or even video conference to gain a head start on the issues. This initial conferral may include the client, which can save time on the day of the video mediation.
Second, counsel may scan and highlight key documents or testimony to be used for the “share screen” during the video mediation. Counsel may consider dual monitors - one for the video conferencing and the other to access documents and the client file. Finally, in advance of the mediation, counsel for one of the parties should have a draft settlement agreement ready for review by the opposing party. In more complex cases, counsel often exchange drafts before the mediation to narrow the issues for negotiation.
With video mediations, an interesting question arises with what the lawyer and client should do after the mediator has left their breakout room. Rather than sitting in a conference room together, they are now interfacing with one another on video. At the click of the “mute” and “stop video” buttons, they can easily disengage to focus on tasks other than the mediation at hand.
The answer to what to do with the time the mediator is outside the breakout room - like nearly everything in mediation - depends on the circumstances. Ideally the lawyer and client would continue to work on their case evaluation and negotiation strategy as the mediation process unfolds. In some cases, realistically there may be some downtime for some of the participants to address other matters. Whatever the circumstances, the lawyer, client and mediator should confer on the expectations for the day. To move the process along, participants should have a method for having a participant come back to the video when the mediator comes back into the breakout room with an offer.
As we navigate through the pandemic, some additional thoughtful planning can make video mediation a viable settlement process for the client. Though I look forward to returning to in-person mediation, I suspect that in the future video mediation will augment our traditional practice. Before I sign off, I want to express my appreciation for my friends who provided me feedback on their mediations by video conference. Good luck!
