Adapting to Virtual Mediation
It was late in the day of a contentious mediation. The parties were frustrated. The defendant’s lawyer was ready to make a “take it or leave it” offer and instructed his client’s executives to pack up their things and prepare to leave. Finally, after explaining for several minutes why the plaintiff’s settlement demand was unreasonable, the lawyer sighed and said, “I’m sorry, I know this is not making it easy for you. Thanks for letting me vent.”
And just like that, I knew the process was working. This case could settle. I had seen breakthroughs in mediation many times before, but this was my first time settling a case by video conference. The defendant’s lawyer and his client’s representatives were faces on my laptop screen.
With social distancing measures in place to slow the spread of COVID-19, video mediation is a dramatic departure from the normal procedure in which participants are often required to attend in person. It is rapidly becoming the new normal, with ever-increasing restrictions on travel and gathering in groups.
As a mediator of high conflict business and employment disputes, I believe a personal connection is essential in achieving resolution. For me to do my job, the parties need to know I understand not only their legal positions but also their culture and values. Unless I establish rapport and credibility early in the process, I cannot be effective in helping the parties reconsider the assumptions and positions that prevented them from settling on their own.
Mediators have long assumed meeting in person is essential to the process. In many jurisdictions, court rules affirmatively require in-person attendance because it ensures the participants’ full attention and ability to sense each other’s demeanor and tone. The dry details of positions and offers can be communicated via email, but mediation works better because it is immediate and personal.
Whatever the advantages of meeting in person, it simply is not possible during a pandemic. Almost overnight, mediators around the country have found, due to the parties’ preference or court order, that settlement conferences must proceed by telephone or video if they are to proceed at all.
Fortunately, my colleagues at Miles Mediation & Arbitration were prepared. We all pitched in to familiarize ourselves with the Zoom video conferencing service, organizing mock mediations and comparing notes about optimal settings. Properly configured and with security protocol in place, Zoom provides a robust virtual mediation experience. After a joint session, the parties can be assigned to virtual “breakout rooms” for private discussion. Screen-sharing is available for PowerPoint presentations and editing the language of the settlement agreement.
We quickly realized the importance of quality audio and video. While it is no substitute for in-person communication, video conferencing with great lighting and sound is the next best thing. Conversely, technical glitches can be a conversation-killing distraction. As mediators, we have had to add to our repertoire the roles of training and technical support. As a service to our clients, Miles Mediation & Arbitration has developed documents and videos with best practices for mediating by video conference. These efforts are ongoing as we learn from real-world experience.
Most surprising to me is that video mediation, done right, is truly effective for resolving disputes. I would not be surprised if video conference takes on a larger role in mediation even after the world returns to normal. It could allow more people to participate, for example, unbound by the constraints of geography. Litigants in complex multi-state cases might decide to mediate early and often by video rather than considering the process a “one-shot deal” that occurs only after expensive discovery.
COVID-19 is changing the world in unpredictable ways. Parties in litigation recognize, now more than ever, the importance of resolving their disputes and moving on with their lives. When meeting in person is impossible, video mediation provides an effective and practical alternative.