Yogi Berra once said, “It’s tough to make predictions, especially about the future.” Well, I am going to make a prediction that in-person mediations will never be the same.
Even before COVID-19 and stay-at-home orders, in-person employment mediations often involved parties who participated remotely. In fact, JAMS had already conducted thousands of mediations by videoconference, including employment discrimination mediations and wage and hour class actions.
Most likely, many of you have been involved in mediations in which insurance carriers and employer representatives, and even plaintiffs and/or their lawyers, participated by telephone and, more recently, by Zoom or another videoconferencing platform. In the pre-COVID-19 days, usually only one or two participants appeared in this manner.
In the past few months, of course, everyone has been appearing virtually, and we have learned that employment mediations work just fine when everyone appears by video. I assumed that video mediations would be suitable for wage and hour and other class actions, and I was correct. To my surprise, video mediations also are appropriate for harassment, discrimination and retaliation cases.
I have been using Zoom, which has breakout rooms where parties and their lawyers can speak to each other privately and the mediator can go from room to room, just like in in-person mediations. The mediator can set up a mediator’s room, where he or she can visit with one or more of the lawyers without their clients, if appropriate, and another room, where the lawyers can talk to each other without their clients or the mediator. Zoom’s screen-share feature allows the parties to show the mediator a PowerPoint presentation, an excerpt from a videotaped deposition or a damages model. It also allows the mediator to use a white board to help the parties decide how to proceed by keeping track of the demands and offers made and, if appropriate, suggesting next moves. In fact, the overall process looks and feels a lot like an in-person mediation.
There are different views available on Zoom, and the “speaker view” permits the mediator to see the plaintiff and other participants even more closely than if in the same room. Credibility has not been an issue. After all, credibility can seldom be determined just by looking at someone.
There are downsides, of course, especially now. Some circumstances can make it difficult to participate; for example, someone in a studio apartment with a few kids and a dog. And there are the lawn mowers, leaf blowers, spouses who need to walk through the room and other distractions associated with appearing from home. Most of these things are accepted (and maybe even welcome) in our new normal, and we all need to realize that there will be distractions.
Also, not everyone has great internet service and/or access to a device that will permit video calling, and not everyone knows how to use the technology. JAMS provides a moderator for each virtual mediation who ensures that all participants are put into the appropriate breakout rooms at the start and who remains available to help throughout the day. If a participant’s internet connection is lost, the moderator will help that person get back online. The moderator will also conduct a test run with participants to ensure they are comfortable with using the virtual mediation platform. Lawyer-participants need to make sure that they and their clients have access to devices that permit video-calling, recognizing that even a mobile phone with a front-facing camera can be used for this.
Because in-person mediations could not be held for the past few months, using telephone or video technology has been the only way for cases to proceed. As mediation centers are beginning to reopen, we may still need to use these types of technology for mediations because some people, including mediators, may need or want to avoid appearing in person until there is a vaccine for COVID-19.
When in-person mediations resume, we can expect that the mediator and participants will be asked to wear masks and stay at least six feet apart.
Mediations via videoconference are preferable to that scenario! No masks are required, and although everyone will be at least six feet apart, participants will be able to see each other’s facial expressions, which would not be the case if masks were required.
We have also learned that using technology in mediations may be preferable, even when masks and social distancing are no longer required, there is a vaccine and everyone feels safe spending time in a room with others. Here are five benefits:
1. Video mediations save time and money on travel. It is likely that many employers and insurance carriers will continue to prohibit unnecessary business travel, and it may be difficult for anyone to say that it is necessary to travel across the country (or even across town) to participate in a mediation. As I said, video mediations work just fine. If we didn’t already know it before the stay-at-home requirements, we have learned that there is no reason for an insurance adjuster or a busy executive to spend time and company money traveling to a mediation when he or she can participate by video.
2. Video mediations can make people more comfortable and productive. Most mediation providers have comfortable spaces, but it’s often hard to compete with someone’s home—a favorite chair, a view of the backyard and even the possibility of snuggling pet nearby. I’ve seen settlements in video mediations facilitated as a plantiff’s cat sat squarely on her lap.
3. Video mediations make it easier for more people and the right people to participate. Employer representatives with settlement authority and general counsels, who may not have the time to travel to a mediation, may be willing to participate if they can do so from their offices or homes.
4. Video mediations offer geographic flexibility so that participants and the mediator can appear from anywhere. Because location is not an issue, video mediations permit the parties to select a mediator who is not local. This can be especially important when seeking a mediator with subject matter expertise.
5. Scheduling is easier. If people don’t have to make travel plans to participate, they may be available on days they otherwise would not have been.
In the near future, it is likely that mediations will continue to take place by video, with all participants appearing that way. Further, in the distant future, it is likely that at least one person will participate in every employment mediation by video.
We are at the beginning of a new frontier of video mediation. The platforms that are available now were not designed for employment mediations, and although they work fine, they can be a little bit clunky. These platforms will evolve to meet the specific needs of their users. Already, Zoom has overcome security issues associated with “Zoombombing,” where uninvited people crash a meeting. Zoom has taken steps to increase security, and at JAMS, no one can join a Zoom mediation unless he or she has received a personal invitation and has entered the correct password. Also, the JAMS moderator will not let anyone who is uninvited into the meeting, and he or she can lock the meeting so that no one can join later. JAMS also uses the HIPPA-compliant Zoom platform, which incorporates the necessary security features to satisfy the requirements of the Health Insurance Portability and Accountability Act (HIPAA). In addition, JAMS does not allow Zoom mediations to be recorded to the Zoom cloud.
I’m reminded of the early days of mobile phones. At first, they were large and clunky, and didn’t do anything but make and receive calls. And now look what they can do! Smartphones allow us to do things we could never have dreamed of then. As long as I am making predictions, I believe that videoconferencing technology will follow the same course. Someday we will view the technology we have now as quaint. But for now, I say it is good enough. People who try it like it. My advice is to give it a try!