August 03, 2020 ARTICLE

Building A Successful Virtual Mediation

Hon. Nancy Holtz (Ret.)

At the time of this writing—late April 2020—the whole country, more or less, is under some sort of stay-at-home order because of the COVID-19 pandemic.  Virtual platforms, like Zoom, have provided new ways of gathering despite the need for social distancing.  Through it all, we’re managing to get work done, send the kids to school and visit with friends and family…virtually.  Easing of stay-at-home orders will come in different ways in different places, though, and so it seems that we will need to keep our virtual toolkit close at hand for some time to come.

“Virtual mediations” conducted over online videoconferencing platforms have been surging during the pandemic.  Mediating by videoconference will remain an attractive option for parties long after those in the construction world are able to return to live mediations because they have been so successful.  The success has been in large part because of a host of advantages, logistical and budgetary.

How can you ensure that the virtual mediation is a success?  The following are some practice tips that you, as a construction lawyer, can employ to help assure a successful mediation day.

It’s the same, but different

At the outset, you should assure your client that virtual mediation offers all the same tools you would have in a live mediation:  the opportunity to submit a pre-mediation memorandum; the opportunity to speak privately with the mediator ahead of time; a joint session, with opening statements, where appropriate; and private caucus sessions with your client and the mediator.  And there is also the opportunity to meet in other configurations, e.g., defendants all together, attorneys only, principal-to-principal, expert witnesses, etc. 

As with live mediations, there are no limits to how a mediation is structured.  In fact, with virtual mediations, there is even more flexibility than is sometimes present in a live mediation.  For example, sometimes a decision-maker is not able to attend a mediation in person due to scheduling or budgetary constraints.  The availability of that person only by an occasional phone call during the session can create a real stumbling block to negotiations.  But with videoconference capability, everyone can be present at the mediation, virtually, for as long as necessary. 

Get answers to your client’s key questions 

You should assist your client in getting answers to questions that are of concern and undermine confidence in the process.   A threshold question that nags at many clients continues to be “Is it secure?”  Videoconferencing companies like Zoom and ADR providers have taken steps to ensure the security of communications that occur during the virtual mediation. You need to give your client a sense of what protections the mediator will provide and what the track record has been.

JAMS neutrals have conducted over 500 virtual ADR sessions since March.  They have all gone off without a hitch and no security issues have been reported by any of the parties. JAMS sessions are made more secure by the use of “Host Associate Moderators” who greet clients in the online waiting rooms and place them in appropriate virtual meeting spaces guarded by unique meeting IDs and passwords.  This puts clients at ease by ensuring they get to where they need to go, but it also eliminates unwanted company, like “Zoom bombers.”  Uninvited guests cannot get past the waiting room and, unlike in real life, guests in the waiting room cannot talk to each other.  Host moderators are available to clients before the mediation day, conducting test sessions with attorneys and clients as well as throughout the mediation day to facilitate use of the technology.  Once parties are in session, hosts can lock the session to ensure additional participants are not allowed in unless the mediator or counsel request their presence. 

Another big question that your client will no doubt want answered relates to the efficacy of mediating by videoconference.  Before your client goes to the time and monetary expense of this undertaking, the client will want to know “Does it work?”  Based on my firsthand experience, the answer is a resounding Yes!  My mediator colleagues are also having good success with the process.

I recently finished a virtual mediation.  We were able to get the case settled after a long day.  At the end, after we had finished drafting a Memorandum of Understanding, each of the parties asked, through counsel, if they could speak with me to express their gratitude and satisfaction with the process and result.  This personal interaction underlined for me that, properly conducted, a virtual mediation can be as satisfying for clients as a real live session.  The settlement they reached, after all, is a real one!

Mediating via videoconference has indeed proven to be very effective.   In fact, based on anecdotal evidence—from the mediations I have done and what I have learned from my JAMS colleagues—the settlement rate of cases via videoconference is every bit as high as in live mediations.

Review the technology

Mediating by videoconference works well in large part because the technology, Zoom in particular, is easy to use. For those of us with even the most modest of laptops, everyone can participate with really good production quality.  The images are crisp and the sound is clear.  As part of this, while the mediator does not have to be super tech-savvy, you want to ensure that the mediator possesses some level of fluency, and thus confidence, in using videoconferencing platforms.

For example, your client will want to know how exactly a mediator is going to get multiple parties in a construction cases together to discuss the case, to look at voluminous documents or to meet privately.  At JAMS, we conduct initial “test” sessions to review all of the technology to allay concerns.  Your client must have confidence in the process itself and you can help by learning about how this works and the mediator’s background so you can share this information with your client. 

Finally, on the technology front, some of your clients may well be a bit intimidated by what is a new platform for them.  So you will want to ensure that your client can feel free to ask the mediator questions about the process.

Build confidence in you as the attorney

For a mediation to be successful, clients must have confidence in their own attorneys.  Certainly, construction lawyers know they must come to a mediation prepared and knowledgeable regarding the dispute at hand.  There are some extra steps you can take when mediating via videoconference.   It is important to expend a bit of time learning how to project well and thus ensure client confidence.  This includes attention to lighting, camera angle, background and similar technical aspects of virtual mediations.  None of this is difficult and, fortunately, there are a proliferation of articles, YouTube videos, and webinars where you can learn how to ensure that you, as the attorney, project well.

Meet the mediator first

The first time most of your clients meet a mediator is when the mediator walks into the room on the morning of the mediation.  Prior to that, you—and your client—must simply rely on the fact of that you may have worked with the mediator in the past, received a trustworthy recommendation from a colleague, or achieved a satisfactory level of confidence from reviewing a profile on a website or LinkedIn.  So until the mediation is actually booked and a commitment made, you are never quite sure if your client will “connect” with that mediator. 

But now, with videoconferencing capabilities at your fingertips, you can add a new, powerful tool to assist you and your client in selecting a mediator who will be a fit for the case:  a videoconference meeting.  In fact, before you even make a final decision, you can have a quick video chat with the mediator or—better still—give your client an opportunity to meet a potential mediator.  This is helpful because a mediator has to do more than simply have a command of the facts of the case and the law.  A mediator has to have the interpersonal and mediation skills to connect with your client—and with the “other room.”  You can help assure yourself of this connection by arranging such an interview.  Your client’s good rapport with the mediator, borne of trust, will go a long way to getting the case settled.

Come as a counselor

Finally, this best practice tip is not limited to virtual mediations but has application in all mediations:  You should come to the mediation not to spend the session advocating.  Rather, you are there to counsel your client.  After you have made your points, it is time to begin the process of counseling your client.  If you spend the entire mediation jousting, with the mediator and with the other side, you have wasted your client’s time and money.  You need to encourage your client to listen, to learn, and to compromise.  In a courtroom or arbitration room, your client needs an advocate to litigate the case.  In a mediation room, your client needs a counselor to settle the case.

Conclusion

As a construction attorney, there are a number of steps you can take to help make your client’s virtual mediation experience a good one.  Learn what you can about the technology and security issues you think will be most important to your clients and spend some time familiarizing yourself with the platform you are going to use.  Include your client in online training sessions or use the videoconference platform to conduct a mediator interview or pre-session meeting, so you can gain confidence prior to mediation day.   

Virtual mediations will never totally replace live mediations.  However, the many advantages of “Zoom” mediations, including their high success rate, ensure a permanent place for videoconference in the resolution of construction disputes.  

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Hon. Nancy Holtz (Ret.)

JAMS, Boston, MA and Dallas, TX, Division 1 (Litigation and Dispute Resolution)