Mediation By Videoconference: Step-by-Step
July 23, 2020
Counsel, Parties, and Mediators are getting comfortable in the midst of the current health emergency with the idea of conducting a virtual mediation session using a videoconference platform, such as Zoom or Cisco Webex. Mediators and counsel who have taken the leap into a virtual mediation often have relatively positive experiences.
During the current crisis, Mediator Connect is offering cost-free access to our secure, virtual mediation platform for all Mediator Connect mediations. Regardless of the platform used, the following steps will increase your chances of coming to a resolution in a virtual mediation:
1. Mediators should prepare the attorneys and parties
A pre-mediation phone call or video conference to set expectations and lay out some ground rules is often advisable. A videoconference is not the ideal setting to start to build a comfortable rapport, but all parties should make a concerted effort to become familiar and to communicate effectively. And holding the pre-mediation sessions using the same platform that will be used for the mediation itself will give all participants an opportunity to become familiar with the experience.
The mediator should not be shy about practicing using videoconference functions that will be used in the mediation. At minimum, the mediator should be comfortable:
- admitting participants into the mediation from the waiting room,
- returning participants to the waiting room,
- renaming participants, and
- moving groups of participants into and out of breakout rooms.
2. Counsel should prepare their clients
Confirm who needs to attend and their availability. Ensure that participants can be fully engaged for the potential duration of the mediation. Make sure they understand how the process will unfold. Answer their questions.
Make sure that the client is reasonably familiar and comfortable with the videoconference platform technology. Consider conducting or requesting a pre-mediation meeting to ensure the client has adequate equipment. Take any reasonable measures to attempt to eliminate the risk of last-minute issues or problems.
3. Be ready to be effective in the virtual environment
Attorneys should address expectations with their clients. How will the participants be dressed? Will they have an appropriate background to be displayed in the physical location? Do their available web camera and microphone perform adequately so they can be seen, heard, and understood? Is their Internet connection robust enough for smooth video conferencing? Can they minimize the risk of interruption at an office or home office location? Is there a contingency plan, such as a conference call, if a participant’s connection to the virtual mediation fails?
Don’t forget about security settings. The videoconference platform that you use is likely to be configured with default settings that may be appropriate for a general meeting but may not be appropriate for a mediation.
Propose holding a practice session before the mediation proper. This could be an initial conversation including all parties and the mediator, or it could be separate conversations simply held on the videoconference platform instead of over the telephone.
Log in early to make sure your software is up to date and you don’t encounter issues with updates launching your video application, such as software downloads or updates. Start the process of launching the videoconference at least 10-15 minutes early. This approach will ensure that you are not the one that holds up the timely launch of the mediation session.
4. Have a backup plan
Things can go wrong and things will go wrong. The mediator should be able to communicate with all participants outside of the videoconference platform if needed. If one or more participants cannot connect to the videoconference or loses their connection, the mediator should have a backup plan in place to provide assistance to the party or move the mediation to an alternative platform, such as a conference call.
If the mediator has access to an assistant or an administrative organization, these resources can provide help to the participant who is experiencing difficulties. Otherwise, the mediator will need to provide support directly. For complex or sensitive or high-profile mediations, the mediator should consider deploying an assistant or administrator in the virtual mediation session whose role is to handle meeting hosting and administrative duties and the provision of support in case any issues arise.
5. Understand how to communicate privately
The Zoom platform includes “breakout room” functionality that allows the mediator (acting as meeting host) to move parties into private virtual rooms for caucusing or other private communications. Attorneys may prefer to create their own private “backchannel” using texting or a telephone call separate from the video conference platform. All participants should understand how to contact each other, if necessary, outside of the video conference platform.
The mediator should ensure that the platform and its settings provide privacy and confidentiality. Mediation schedulers should use unique meeting numbers for each mediation. The mediator should advise parties that nonparticipants are not permitted to observe the mediation by entering a physical room where a participant has joined the virtual mediation.
6. Communicate effectively in the session
Videoconference platforms impose an unavoidable audio delay. Consider using gestures rather than vocalizations to indicate your momentary responses to another speaker. It can also be helpful to gesture to indicate your intention to chime in and speak.
Focus intently on the nonverbal cues of other participants. Even in a virtual mediation it is possible to identify important reactions.
Speak more concisely and clearly than you typically would. Eliminate unnecessary adjectives. Include navigation signposts for where your presentation is going.
7. Share necessary information
Transferring files during a video conference session could be a security risk and might be inconvenient. Try to share needed documents in advance using a secure method, such as a secure portal or encrypted email. Confidential information and documents should be handled using a separate process with the mediator.
8. Finalize the settlement document or term sheet
The mediator can make edits during the videoconference and obtain verbal sign off on the final version after sharing the document electronically. The mediator should then follow-up for electronic signatures as soon as practicable after the session.
9. Use the convenience of virtual mediation to your client’s advantage
The cost and convenience advantages of virtual mediation when compared to in-person mediation can create opportunities for the proactive attorney. Consider, for example, if it is to your client’s interest to split up the traditional half-day or full-day mediation session into multiple different functional units.
You could propose to have initial sessions with the mediator to accomplish information sharing. You could propose multiple shorter sessions rather than one primary session. Think outside of the box. Virtual mediation is a new phenomenon and there are opportunities to be had for those who a looking in the right places.
Conducting a mediation session by videoconference might be the best that can be done under the current circumstances of the coronavirus emergency. However, with a bit of preparation, counsel, parties, and mediators might find virtual mediation to be a relatively pleasant and productive experience.
No one can predict the future with confidence, however some ADR commentators are predicting that videoconference mediation is there to stay. Indeed, face-to-face mediation in the near future may become just an option that can be selected as an alternative to the default approach of mediation by videoconference.
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