Virtual Mediation During a Pandemic

The novel coronavirus, COVID-19, has turned all of our lives upside down in many different ways. Those of us fortunate enough to have our health and maintain our law practices are experiencing a great number of changes in the way we conduct business. One of those changes concerns mediation. With social distancing and stay-at-home requirements in place, many lawyers have decided it is not possible to mediate cases. At The Gorny Law Firm, we have reached a different conclusion. We have mediated a number of cases utilizing the Zoom platform. What follows are general observations about the issues and questions which arise when utilizing this and other electronic tools to pursue settlement during the pandemic.

Is a Virtual Mediation Secure?

At the outset of the pandemic, there were a number of questions and issues regarding the security of the Zoom platform in particular. Other concerns were raised with regards to additional platforms. Certainly, if the technology is not secure, you cannot risk breaching your client’s confidentiality or, perhaps worse, having your opponent obtain your confidential information through the technology.

The operators of the Zoom platform made adjustments to enhance security. Further, regardless of the technology utilized, users are encouraged to set a private password for each meeting and to have meetings established by private invitation only. The majority of security breaches in the Zoom platform occurred on open invitation meetings (such as those posted on Facebook or a university website). Personally, since the beginning of the lockdown, I have been in more than 100 virtual meetings across the various platforms. We have not had a single security issue. These include virtual meetings as small as two participants to several including more than 3,000 participants.

Regardless, you should do several things prior to agreeing to mediate virtually. Make certain that your mediator can securely run the technology. Most are now extremely capable. Also, address the potential security issues with your client and obtain their consent to participate.

In General, How Does A Virtual Mediation Work?

The mediations we conducted have all been through the Zoom platform. With that technology, the process can occur in a variety of ways. I conducted one mediation with my clients present, at a safe distance, in my conference room. The other mediations I conducted were completely remote with my client at home and me at my office. The mediator is in a neutral location. Defense counsel and adjusters have also been completely remote. It is important that all participants have strong wi-fi signal to avoid breakdowns in communication.

The Zoom platform enables a virtual mediation to function much like an in-person session. The mediator can host a group meeting at the outset of the process. All participants are present for the “ground rules” session. Then, the process divides into “virtual” breakout rooms. This feature is available on Zoom. Prior to the beginning of the session, the mediator establishes which people will be sent to which breakout room.

Then, as if the mediator were walking from conference room to conference room in an office building, he or she just bounces back and forth between the various breakout rooms. A mediator adept at the technology will be able to leave the room so that the lawyer and clients can speak privately. There is then a button that alerts the mediator when the separate side is ready for the mediator to return to the breakout room. Mediators less comfortable with the technology have requested that we simply mute the Zoom session and have a conversation between client and lawyer “off line” by cell phone. Each way has worked flawlessly.

Can Virtual Mediations Produce Reasonable Settlements?

Prior to my first virtual mediation, I was concerned that the process would be disjointed, disconnected, and a waste of time. Without face-to-face pressure from the mediator, I wondered if the defense room would take the process seriously. And, like many of you, I feared that, with the loss of the “trial date” hammer due to COVID-19, insurance companies would not offer fair value.

Having sat through a number of virtual mediations, my experience has been that the process produces nearly identical results to in-person settlement discussions. However, as with a traditional mediation, one thing remains critical – that the individuals calling the shots on how much money to offer need to be “physically” present. By this I mean that the adjuster, the defendant, or whomever is the ultimate decisionmaker needs to be visibly on the call and subject to direct inquiry from the mediator. This came to bear in a mediation ordered by the court. My client and I got on the call. In the original group session, defense counsel was the only person present on their side. I was going to terminate the mediation at that point as the decisionmaker was not in the session as required by court order. However, defense counsel assured us that the adjuster was available by phone. Shortly into the mediation, it became clear that we were not going to reach a resolution. The defense was still glued to a position contradicted by three independent witnesses. When the mediator told me that he was unable to speak directly with the adjuster, even by phone, I ended the session as I knew that they were never going to get serious with the process.

The converse of the above situation is true. The most successful mediation we had included defense counsel and two different adjusters on the virtual call from the outset. During the course of the session, the mediator was able to convince those in the other breakout room that they had grossly undervalued the case. Thus, my clients and I were put on hold for approximately two hours. During that time, the defense brought in another lawyer and another individual from the insurance company to re-assess the case. During the second half of the day, the offer increased by six-fold into a very reasonable settlement range.

Two takeaways from those examples: First, do not participate in the mediation unless the adjuster is actually present and visible on the call. In the first example, when I was told that the adjuster would not be in the Zoom meeting, defense counsel indicated the reason was that the adjuster did not have a camera on his laptop. Of course, that same adjuster who was supposedly available by phone certainly had a camera available on the hand-held device. Second, do not believe the defense position that, because the session is on Zoom, they brought all of the money available on that particular day. In the second example above, they not only got additional monetary authority during the session, they brought in an entirely new lawyer to help evaluate the matter. I participated in another mediation in which offers nearly doubled after the adjuster present began making phone calls. The “I need to make a call” is certainly a regular strategy during an in-person mediation. There is no reason why it cannot continue to occur virtually

What about Exhibits?

The use of exhibits is simple in nearly all virtual meeting settings. To show an exhibit or play something like a day-in-the-life video at the outset of the mediation, you have two options. One, you can send the exhibit to the mediator ahead of time so that the mediator can present the exhibit to all participants. Two, you can have the mediator transfer control of the screen to your computer. You can then utilize the exhibit, highlight particular issues, and call out specific items.

As with Zoom depositions, you may want to distribute the exhibits prior to the mediation. While a bit more cumbersome than passing out the exhibits in person or having the mediator bring the exhibit to defense counsel in another conference room, you should not be concerned about the inability to display particular items during the mediation.

What about the Personal Connection?

I will admit that virtual mediations lack the personal connection that many lawyers and clients rely on during the mediation process. As you know, mediation is sometimes viewed by a client as their “day in court.” They get to tell their story to somebody besides their lawyer and they get to help their lawyer fight for their cause of action. This is much more difficult and impersonal when done over the Internet than when sitting side-by-side.

There is also a good connection between the lawyer and client at mediation. It is a chance for the client to see his or her lawyer arguing on their behalf and telling their story. That bonding helps the client to make a sound decision about whether to ultimately resolve the case. While unlimited amounts of one-on-one communication can occur during the virtual mediation in a separate breakout room, it simply is not the same as sitting at the conference table with the client, literally holding their hand, and guiding them through the process.

To overcome this lack of personal connection, and prior to each of my virtual mediations, I had an individual Zoom session to address mediation, questions, strategies, and to make certain my clients fully understood the process. While I have prep sessions for all in-person mediations as well, the meetings via Zoom have been longer and more in depth as I understand that the clients may be less inclined to ask questions during the mediation itself. These preparation sessions have greatly facilitated the mediation process and contributed to successful case resolution.

How Do You Finalize a Resolution?

Finalizing and memorializing a resolution during a virtual mediation can be done exactly as it is done during an in-person session. At the conclusion of the mediation, the mediator prepares the traditional mediation statement. It is then sent by email to all parties. The parties then have an opportunity to make changes and adjust the terms just as if they would be passing the document back and forth from conference room to conference room. Once all issues are resolved, the mediator sends the final version to each counsel. The final version is then passed by email from lawyer-to-lawyer. Each side then leaves the session with a signed mediation agreement.

Conclusion

As you are reading this, stay-at-home orders are loosening around the country. However, there remains great uncertainty with regards to how we will move forward with civil litigation in the weeks and months ahead. Should health concerns ensue, I suggest that lawyers do not hesitate to mediate the right cases virtually. While mediating online lacks some of the personal connection enjoyed during in-person mediations, it is a valuable and efficient tool for resolving litigation.