Real Wins at Virtual Mediation

Tips for success during our new normal

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With numerous states across the country instituting varying stay-at-home orders and restrictions on court proceedings and travel, now is a critical time for finding new ways to resolve claims.

Virtual mediation has proven to be a successful stopgap solution to courtroom shutdowns and social distancing guidelines. While it can be a great tool, virtual mediation does take away some of the human connection element for everyone: You can’t observe body language, look into someone’s eyes, or shake hands when a case is resolved. The “feel good” component of mediation is reduced, but that doesn’t mean that you can’t still obtain results. So, is virtual mediation effective?

Technology

Most video conference applications work, as long as all parties and the mediator utilize the same video platform. Several popular programs being used are Bluejeans, RingCentral, Zoom, and Webex. One key is to ensure that whichever software is being used, it has the ability to separate people into secure breakout rooms. This is essential to being able to maintain a bit of normalcy at mediation: The mediator can put counsel, their clients, and their claims representatives in a private room to be able to have conversations outside the presence of the other party, and outside the presence of the mediator—just like they might at an in-person mediation.

It is also advisable that counsel for each party run a test of the technology with the mediator prior to the mediation. This will allow the mediator to feel comfortable with the preparedness of counsel, and also ensure that counsel are prepared to aid their clients and claims representatives should they need help during the actual mediation sessions.

Some carriers have strict guidelines on which applications can be used and whether it is acceptable to participate by video or just audio. Claims professionals will need to check if their companies have specific rules and, if so, share them with the mediator and opposing counsel as early as possible.

Also keep in mind that mediation is necessarily a confidential process, and the addition of a third party—a software company hosting your video—adds an extra layer of potential security concerns. You want to make your mediation as secure as possible, so make sure you have an account with the hosting company that provides full access to all features, have a password for access that isn’t provided to the participants until closer to the call, and utilize the waiting room to ensure that the mediator has the ability to only let in the people who belong in the mediation.

Preparing for Results

Before turning on the camera, think about the image you would like to portray. Dress like you would for an in-person mediation proceeding. Not everyone has home offices, which means we have had to create workspaces in our bedrooms, kitchens, and dens. Log in early and see what it looks like behind you on the video. Be aware of unmade beds, shining lights, or anything else that might distract viewers of your video. Zoom, for example, allows users to customize backgrounds, or you can select from the program’s list of images to create virtual backgrounds, as well. Several companies and law firms have created backgrounds for this very purpose, so check with your IT department to see if this is an option.

Make sure to mute your microphone when you are not speaking to minimize background noise. Utilizing the mute button will allow you to be heard when you are speaking, but also removes the likelihood that the kids, dogs, and things like neighborhood construction noise will distract from the success of your mediation. 

While virtual mediation can feel different than live mediation in a few regards, the key to success is the same: preparation. Before you start the mediation, be sure to consider these important questions to ensure your bases are covered: 

•    Are there any coverage issues?  

•    Do I need to see the plaintiff in order to assess damages?

•    Do I have everything I need from opposing counsel to assess the value? 

•    If I need to call for additional authority, are they readily available? 

In general, use your typical mediation strategies, with one caveat: Keep in mind that when everyone is already at home, it is much easier for them to get up and leave the mediation,” since all they have to do is simply click a button that says “leave meeting.”

Additionally, consider asking the mediator prior to the mediation to provide you with some sort of notice prior to coming into a private breakout room. In person, a mediator would simply knock on the door, but most software options do not have a “knocking” feature. Using all of the tools available, including text messages or phone calls outside of the video mediation, will be helpful so that confidential conversations can cease before a mediator rejoins.

Also consider having a short- or long-form agreement prepared in advance with your counsel. This will ease the process of obtaining all parties’ signatures and expedite the circulation of the document. The use of Adobe Pro or DocuSign in order to sign agreements during the session has also proven to be worthwhile.

Is virtual mediation a long-term solution? Not likely, as participants usually find that mediation is successful because all parties have an equal vested interest—sharing the cost and overcoming physical barriers to arrive at the bargaining table, whether it be traffic or travel. But during today’s current conditions, people are flocking to virtual mediation as a short-term solution in order to keep their cases moving forward. Ultimately, it is an effective tool for all parties until the time comes when we are not required to stay six feet apart. 

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About The Authors
Multiple Contributors
Rosemarie Chiusano-Drohan

Rosemarie Chiusano-Drohan is executive vice president of business development at Judicate West. rosemarie@judicatewest.com

Alex M. Chazen

Alex M. Chazen is a partner at Kahana & Feld LLP. achazen@kahanafeld.com

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