Since the Covid-19 pandemic, mediation has quickly pivoted from an in-person event to one occurring primarily via video conferencing.  Although several video conferencing platforms exist, Zoom appears to be the most popular for now.  Video and online mediation does, however, present particular challenges for attorneys and mediators.

In order to maximize settlement prospects with online mediation, attorneys need to make sure that their clients are able to navigate the applicable video technology.  This requires practice and patience. Mediation can be, and often is, a stressful experience for clients. That stress will likely increase if they are unable to fully navigate video technology and/or are unable to participate in the video.  While telephone participation may be available as a backup, it is a lesser, and more impersonal substitute.

Important things to consider when using Zoom as a video mediation platform:

  1. Make sure your Zoom meetings have an access password. I cannot stress this enough. Having an outside party accidentally join your mediation is not only a breach of confidentiality, but also a breach of trust amongst the participants and mediator.
  2. With online mediation attorneys and mediators must guard against unintended technical consequences. For example, Zoom has a recording feature. Ensure all parties are aware of the record button, how it should be turned- OFF, and that recording of the mediation violates the Uniform Mediation Act. Further. Thus, it is incumbent upon mediators and attorneys to make sure that recording technology is disabled throughout the mediation.
  3. Making sure your microphone and audio work PRIOR to the mediation. You will not believe how many times participants had to leave the meeting, and then dial back in, repeatedly. This can be easily tested at home by launching the Zoom platform and starting a call.
  4. Having back-up technology! Yes, this may seem obvious, but back-up plans aren’t at the forefront of our minds on the day of mediation. With today’s technology and its capabilities, we often don’t consider the following scenarios: the internet connection failing, the computer freezing, electrical power outages, inability to open the meeting information. All of these worst-case scenarios should be taken into consideration -and yes have happened at one time or another.

Another strong suggestion is for attorneys to exchange their written submissions to the mediator.  This practice used to be customary, but, has in recent years diminished for reasons that do not withstand scrutiny.  When a mediation begins, whether conducted online or in person, parties should be well aware that there is another side to their case.  The mediator shouldn’t be the first emissary of bad tidings communicated by the opposition.

There is no telling when mediation may revert to a process where participants gather in person.  It is quite possible that video mediation (and arbitration) may well become the new normal.  Thorough pre-mediation preparation by mediators and attorneys presents the best opportunity for a successful negotiation.

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