Mediating in the Wake of COVID-19

Originally published by MehaffyWeber.

Written By Managing Shareholder Bob Black

One of the consequences of the current pandemic is a change in how we practice law and deliver legal services. Mediation is an example. We have gone from in person mediations to Blue jeans and Zoom virtual mediations. After 4800+ mediations, I embraced change about a month ago.

In researching videoconference options, I chose Zoom, the professional version. It is available at a low cost per month. I chose Zoom after reviewing the issues raised regarding confidentiality and network security. My assessment was that security issues exist for all videoconferencing methods and that Zoom had the most usable process right now. There will be rapid development in this area and my choice may change.

I like Zoom a great deal but do have some observations about it after conducting 18 Zoom mediations. Let me address security and confidentiality concerns first. Then I will share my observations about mediations conducted by videoconference.

Security and Confidentiality

I have had no issues with the Zoom system. Once parties are in their own breakrooms, confidentiality concerns are basically nonexistent absent an error by me as the host. For example, if the host places someone into a breakroom that does not belong there, it could be a problem. If it does happen, however, the host should quickly realize it and the people in the breakroom can see on their screens that someone is present who should not be. Removing that person involves a simple click of the mouse. Again, it has not yet happened to me. We are careful to provide the link to the videoconference only to pre-identified participants. That way, we know who should be present. Last second call-ins pose a problem and I do not admit them until I have verified they belong with one of the parties.

The more serious confidentiality issue is the available Record process. Mediations (including virtual mediations) should not be recorded. Some recordings violate various state laws anyway. The Record button is easy to hit. My advice is be sure to question the host – who is almost always the mediator – about whether the Record function is being used. Outside the mediation world, a recording may be needed and appropriate, but not in mediation. I tell the parties at the beginning there will be no recording. Separately, whenever I enter and leave a breakroom, I announce it. This helps ensure confidentiality throughout the process.

Mediation Observations

Videoconferencing is a “cooler” medium than more traditional mediations. Table-pounding theatrics come across poorly in videoconferences. I believe it favors a television news anchor approach. All mediations favor the prepared and virtual mediations are no exception. Learn to use the Share Screen feature to display photos and documents.

Opening Sessions are of very mixed utility in videoconferenced mediations. Your view of whether that is a good or bad thing depends on your view of opening sessions in general.

The pace of mediation is no different than in-person discussions. I try to move the process along but accept that videoconference discussions have their own pace.

I have had little problem so far with people disappearing from the mediation. However, people are beginning to step away for other business. It is frustrating at times. Of course, this is true of in person mediations as well. People have to remained engaged. And I quite enjoy “teleporting” from one room to the next.

People should dress for the occasion. A widow, for example, might see someone wearing a track suit and be offended. Also, everyone is curious about the visual background of participants. I advise a neutral background and suggest that one consider this in choosing where you sit. My favorite so far is the lawyer who was in some sort of massage chair that was shaking him vigorously. I had trouble understanding but perhaps it was because I was laughing.

Overall, I think in-person mediation is better in some types of cases but that Zoom mediation is quite effective in most. Below please find my Protocol for Virtual Mediations for your review. The American Arbitration Association has also issued “AAA Guidelines for Virtual ADR Proceedings” and it is very thoughtful. I have borrowed from those Guidelines and adapted them to mediation. If you are interested in the topic, I highly recommend the AAA Guidelines.

Protocol for Virtual Mediations

1. Any video conferencing platform must protect the confidential nature of the mediation process and must comply with all applicable rules governing mediations.
2. The platform should be easily navigable by the parties, recognizing the participants may not all be at the same technological level.
3. The host must be able to verify the identity of all participants to protect the process and those participating in it.
4. The platform must have a feature that permits the viewing of relevant documents.
5. The mediation may NOT be recorded.
6. If there is a platform failure or outage, teleconferencing will be used.
7. I believe Zoom (professional) best satisfies the criteria outlined above.

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