Mediations During The Pandemic

Cranfill Sumner LLP
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Cranfill Sumner & Hartzog LLP

Many of us are learning to do things differently as we cope with stay-at-home orders, restricted operations of the courts, travel restrictions and general reluctance of folks to subject themselves unnecessarily to the risks of gatherings.  Yet, the practice of law and resolution of disputes, like life, can and must go on.  Mediation as an accepted and often preferred method of resolving civil lawsuits remains available despite the limitations imposed by the pandemic.

Technology has provided us tools to conduct mediations over the internet, using video platforms such as Zoom, Cisco WebEx, Microsoft Teams, among others. These technologies enable lawyers and parties to participate in a video mediation from their homes and offices rather than in an in-person gathering.  And the mediation rules that apply to court-ordered mediations, which discourage remote participation in mediation, have been somewhat relaxed to permit video mediations if all parties consent. 

I am not advocating any particular technology, but currently I am using Zoom for my mediations, and have found it a very effective platform. (Zoom has recently addressed security concerns by, among other things, adding encryption).   I am often asked if the video mediation is as effective as in-person.  While admittedly my sample size at this point is somewhat limited, I can say unequivocally that the mediations I have conducted over Zoom have not, in my view, been any less effective than if we were all together.  The technology permits all participants to gather together for an opening session (which is my usual practice) and then permits me as the host of the mediation to separate the participants into separate breakout rooms.  I am able to move among the breakout rooms just as if at my physical office and moving from conference room to conference room.  The breakout rooms are private and no one outside of a breakout room can hear or see what is going on in the breakout room.  As is often the case, the parties can kick me out of their breakout room as they discuss a particular offer or counteroffer, and then summon me back in to discuss it with them. 

The technology also permits participants to present documents, photographs, demonstrative exhibits, PowerPoints, video, and anything else that they have on their computers during the mediation by means of screen sharing.  It permits participants to create or markup documents on the fly, if appropriate.  It basically permits participants to present their cases at mediation just as they would if physically face-to-face.   And at the end of the day, if settlement is reached, the settlement memorandum can be drafted and signed to conclude the mediation.

I am sold on this means of mediating, and I am convinced that while in-person mediation will be preferred in many cases, there will be increasing demand for remote mediations after we return to whatever normalcy will look like on the other side of the pandemic.  Clients will demand it as they realize that the technology permits effective mediation without the cost of travel when necessary attendees are spread far and wide as is often the case.  In the post-COVID world, many aspects of the practice of law will be different, and video mediation is just one example.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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