Few lawyers considered mediation using web-based video conferencing before March of 2020. Now lawyers are not only considering doing it, it is working. Below are a few thoughts for success.
- First and foremost, make sure to use a secure video conferencing platform. Client confidentiality remains essential.
- Each party to the mediation should set up their separate video conference. This allows the attorneys and representatives who are participating to have their own “conference room” to discuss the facts and any planned settlement offers. The mediator can join as needed, and you will always know when the mediator joins – just like they walked into the room.
- If your mediation requires a joint conference among the parties a separate video conference link may be used.
- Test the video conferencing with the mediator before the mediation begins to ensure that everyone knows how it works and that those persons who require it have video capabilities.
The Mediation Process
The mediation in which I was involved recently proceeded just like a normal mediation. All parties and their lawyers talked with the mediator and expressed their positions. Everyone could see each other just as if we were in person. Demands and offers were exchanged with positions and reason to support each. I did not observe any downside to conducting a virtual mediation. However, I can foresee some minor difficulties in cases where the mediator and the parties need to look at documents, drawings or photographs together to fully understand their importance.
To address issues that may arise with viewing documents, consider sending the mediator the key documents before the mediation and confirming with the mediator that you will be able to send the mediator documents electronically during the mediation. You may also need to share documents with the mediator and your clients from your computer while in the video conference. Simply, these issues can easily be addressed.
If a settlement is reached, the mediator or one of the lawyers can document the key terms of the settlement and email them to counsel and the parties for signatures. Again, this should work just as if you were mediating in person.
Why have we not done this before? It is so easy. It is less expensive. There was no travel for anyone involved. More stakeholders for each party may participate if needed. The “down time” each side experiences during a mediation is mitigated because you can put the audio of the video conference on mute and turn off the camera. A simple email or text to your client team alerts them to rejoin the video conference.
While I am certain technical difficulties will sometimes interfere with a virtual mediation, with practice and patience those difficulties can be minimized and overcome. I wonder if we will ever return to in-person mediation, except in the rarest of cases.