As the world continues to adapt to the realities of the COVID crisis, our attorneys have already completed a substantial number of Online Mediations and have many more scheduled. Lawyers and their clients have begun to recognize that it makes sense to agree to Online Mediation because, quite simply, it works. We have heard from the vast majority of our participants that they think Online Mediation is here to stay because it is as effective as in-person mediation and more cost-effective. Here are 10 key tips that make an Online Mediation successful.
- Don’t Be Afraid of the Technology – With a few minutes of brief instruction, almost all participants become comfortable with the technology. Even those who think of themselves as “technologically inept” learn the system quickly and soon forget about the computer. We regularly hold pre-mediation Zoom conferences to familiarize the lawyers and participants with the technology and to answer questions before the day of the Mediation.
- The Process is Private, Confidential and Secure – We take all the necessary precautions, including using strong, randomly generated passwords, unique meeting ids, no public wi-fi and “locking” the meeting once all the participants have joined.
- The Zoom Platform – We use Zoom for a variety of reasons including the company’s rigorous commitment to real-time security updates. For example, participants are placed in a Waiting Room and cannot enter the meeting until the Mediator allows them to do so. They are muted and cannot speak to the other participants waiting to join. Once they are admitted to the main meeting, and usually after the introductory group session, the parties are separated into Breakout Rooms for caucuses. The parties can have confidential conversations among themselves while the Mediator is in the other room. The Mediator then moves back and forth between the rooms, and even has the ability to “knock” on the door. The Mediator will always text or communicate before entering a room.
- The Mediator is in Charge – It is important that the Mediator is comfortable with the features of the technology. Before something goes wrong, the Mediator should discuss with the parties what to do if they are disconnected or if the internet connection is lost.
- Use an Attendance Sheet with Contact Info – On our usual sign-in sheets, we now ask for e-mails and cell phone numbers so that all participants can be contacted, and if necessary, continue the Mediation by phone.
- The Mediation is Not Recorded – The Mediation is not recorded. One of our main concerns is to maintain the confidentiality of the process. So, we do not allow the recording of the Mediation by any party.
- Be Careful Sharing Documents – The convener of the Zoom meeting can choose to allow or disallow participants to share their screen. If screen sharing is enabled, it is possible that a participant may inadvertently share his or her computer screen allowing others to see whatever is on their screen, including an open document. We discuss this at the pre-mediation Zoom conference. If the Share Screen function is disabled, the parties should identify the documents they intend to use and share them with the Mediator in advance. They also can be shared via e-mail during the Zoom call. As Mediators, we use our computers, smart phones and tablets because it often is easier to have more than one screen. It also is a good idea to have old fashioned paper copies available.
- Treat the Mediation As If You Were Attending It In-Person – This means no eavesdroppers, spouses, children or pets in the physical room where participants are actually located. Participants should have as private and well-lit space as possible. No eating, multi-tasking or doing other work – at least while the Mediator is present in the Breakout Room. The mediation works best if all parties treat the Mediator and the other side with the same respect as if the proceeding were in person.
- Follow the Usual Mediation Process – This means having a clear understanding about the process, including breaks, confidentiality, etc. This requires giving more precise estimates of how long caucuses will be or when breaks will end. When the private caucus is completed, participants can click on the Help link, the Mediator will be notified to return to the room. It also means treating all participants with courtesy, respect and patience.
- Complete a Term Sheet – As with in-person Mediations, if an agreement is reached, the parties should execute a Term Sheet. This can be signed using a program such as DocuSign or Adobe sign. The Agreement also can be confirmed via e-mail between counsel before the meeting ends
Of course, every Mediation is different, and there are no guarantees that cases will settle. But applying these 10 recommendations will smooth the way for the effective use of Online Mediation. As our society and technology continue to co-evolve, we’re confident it will take up permanent residence in our ADR toolbox.