As we continue to follow directives to practice social distancing, videoconferencing has become the new normal for conducting meditations. Fortunately, video and audio participation through remote videoconference platforms is widely available for parties to use to resolve their cases in mediation and is a good alternative when in-person mediation is not possible or practical. We have found the Zoom platform the most useful for meditations, but several others are available.
The reaction of many attorneys who have experienced meditations using Zoom is “surprise” at how well it works and how effective it can be in resolving cases. While the program does a good job of replicating in-person meditations by offering joint sessions, breakout rooms, and the ability to create binding settlement documents, there are necessarily differences driven by the technology of the process. By helping counsel and parties understand how remote video mediation works, including what will happen from scheduling through conclusion, mediators can help ensure that the mediation will go smoothly and increase the chances of successful resolution.
Here is a step-by-step Practice Guide that we use to help participants – counsel and parties - prepare for their videoconference meditations:
- You can participate fully in the mediation with a desktop, laptop, tablet, or smartphone (if you are using a smart phone you will need to download the Zoom Cloud Meetings app.).
- It is important that your device be fully charged and/or that you have charging accessories available so that nobody’s device runs out of power during the mediation.
- You will need a strong, secure (not a public network)internet connection.
- You should have your cell phone available as a backup up means of communication.
- The service center on Zoom’s website has a variety of helpful videos and instructions, including participating in a practice Zoom meeting.
Scheduling/Joining the Mediation
- You will receive an email invitation to the Zoom mediation for the date and time agreed upon.
- Click on the Zoom meeting link 5-10 minutes before the mediation is scheduled to start.
- Click on “Open Zoom” in the prompt that will appear on your screen. You do not have to have a Zoom account to do this or to participate in the mediation.
- You should join the meeting with your video and audio on.
- You will be admitted into a separate Waiting Room. You may wait a few minutes in your waiting room until everybody has arrived before you are brought into the mediation. You will not be able to see other participants, but the Mediator will be able to see that you are in the Waiting Room.
- The Mediator will admit you into the Main Session Room along with the others to begin the mediation.
- There is a taskbar at the bottom of the screen that shows the functions that the participants can use. The Zoom screen can be reduced or minimized for easy access to email and documents on the participants’ computers.
- Participants can change the way that the participants appear on the screen by choosing Speaker View, which enlarges the video screen of the person speaking, or Gallery View, which gives a “Brady Bunch” appearance to participants’ video screens.
- If a participant leaves the mediation due to a connection or power issue or by mistake, they can return to the mediation by going back to their email invitation and clicking the Zoom meeting link. They will enter the waiting room where the Mediator can see them and bring them back into the mediation.
- The Mediator should have the participants’ cell phone numbers for backup and troubleshooting communications.
- The Recording Feature should be turned off by the Mediator so that the mediation cannot be recorded through Zoom. In addition, all participants agree not to video or audio record the mediation by any other means.
- The mediation starts with a Joint Session where the Mediator explains the mediation process and the functions of Zoom that will be used.
- Each party will then have an opportunity to make an opening presentation in the joint session.
- There is a screen sharing function the parties can use to show documents and photographs for their opening presentations.
Breakout Rooms for Private Sessions
- After the joint session, the Mediator will separate the parties and their attorneys into what are called Breakout Rooms. The participants will only be able to see and hear those in their breakout room and will not have video or audio access to the participants in the other breakout room.
- The Mediator will meet separately and privately with each party and their lawyer in their respective breakout rooms, going back and forth from one breakout room to the other, to discuss the case and guide the negotiation to attempt to reach a settlement.
- The parties can use the screensharing function to review documents and photographs with the Mediator privately and confidentially in their breakout room.
- As needed, the Mediator can leave a breakout room so the parties can confer with their attorneys privately. The parties can signal the Mediator to return to the breakout room when they are ready.
- Extra breakout rooms can be created by the Mediator for conferences between the Mediator and the attorneys or other combination of the participants.
- If the parties reach a settlement, the Mediator will help the parties prepare, review. and revise settlement documents.
- Together, the parties can decide with the Mediator the best method of obtaining signatures. Common methods for obtaining signatures include DocuSign; electronic signatures; and email, print and scan.
Pros, Cons, and Practical Considerations
With the uncertainties created by the Covid-19 pandemic and the likely increases in the length of time parties in litigation are facing in moving cases forward, videoconference mediations provide an important alternative to resolving cases while the constraints of social distancing preclude mediations from otherwise happening. Understanding how the process works and being able to educate clients on what to expect will be critical to making the experience of “the new normal” mediation satisfactory and successful. We have had the opportunity to practice in various neutral affinity groups over the past two months to gain an in-depth understanding of Zoom features and their usefulness in mediations. We strongly encourage attorneys to do practice Zoom sessions with clients to ensure their comfort and understanding of the platform so that parties can focus on the substantive issues during the mediation without undue anxiety about how the mediation will work.
There are many positive aspects to conducting mediation via remote video. Remote mediations can be more easily and quickly scheduled since travel is not a factor. For the same reason, costs, and time, particularly for out-of-state participants, can be significantly reduced. In addition to replicating many of the features of in-person mediations, Zoom’s screen sharing function, with its ability to allow all participants to share, control and mark documents, can facilitate and improve the showing of exhibits and working on documents by all participants together or in smaller groups, such as the attorneys working on settlement documents. Probably most importantly, holding mediations via videoconference allows parties to move forward conflicts that are otherwise unable to proceed in other settings due to backlogs and closed courthouses.
Downsides to videoconference mediation include the difficulty in reading body language and facial clues of participants. Mediators will not have the same control over the physical environment as they do with in-person mediations, which can create confidentiality and appearance issues. Attorneys with client control/expectation problems may find it more difficult to have effective client communications, with or without the mediator, than they would if they were in the same room. Furthermore, technology issues are to be expected and can slow down the process and distract from the work at hand. Finally, remote mediations certainly take more time to prepare for, although the time in mediation itself seems about the same as it would be otherwise.
The setting and technology involved create additional practical considerations for mediators to be aware of when conducting remote video mediations. Discussion by video is more tiring than in person conversation and makes it difficult to obtain real eye contact or allow for natural breaks in conversation. This may make it difficult for parties to generate empathy and may cause frustration because the conversation is not as satisfying as an in-person mediation. Frozen screens and delayed audio can make conversation challenging. Some tips to avoid those downsides are to speak slowly and avoid taking over others. You can also talk in shorter bursts, giving more opportunity for interaction to make sure communication lines are working. The mediator may take more breaks than in person, to allow participants to give their eyes a rest and catch their breath. A mediator is not able to level the playing field in terms of the technological capabilities of all parties. It is important for the mediator to take into account the imbalances of power that may be exacerbated by use of the video platform and the need for parties to participate in home settings rather than a curated neutral setting. Showing empathy for interruptions and difficulties parties may have in focusing are essential skills for the mediator doing remote mediation.
All things considered, remote video mediations provide a viable and useful tool for parties to resolve disputes during the current state of emergency.
Peter Schroeter is a Mediator and Arbitrator with the firm of Shaheen & Gordon. He is a member of the National Academy of Distinguished Neutrals and recognized by Best Lawyers in America and New England Super Lawyers in Mediation. He is the Chairperson of the Maine State Bar Association Alternative Dispute Resolution Section and Past President of the Maine Association of Mediators.
Rebekah Smith, Principal at Seven Tree Solutions, provides mediation, arbitration, and independent investigation services, operating exclusively as a neutral for over 15 years serving private parties as well as government and administrative agencies. She is a Past President and current Vice President of the Maine Association of Mediators and a Board Member of the Labor and Employment Relations Association-Maine. She is a rostered neutral with a variety of organizations including AAA, the Maine Labor Relations Board, the Maine Human Rights Commission, and the Maine Department of Education.