To say that the Covid-19 pandemic has been disruptive is to understate the obvious. As a mediator and arbitrator, I have seen my docket for April, May, and June mostly vanish, although I’m optimistic that the postponed arbitral hearings and mediations will be rescheduled in the fall. But fall bookings are hardly a guarantee, especially if the second wave of the virus that many experts are predicting arrives on schedule.
Although I am a baby boomer, I would not describe myself as a technological dinosaur. However, prior to this crisis, the thought of conducting mediations and arbitrations by videoconference was anathema to me. How could I possibly assess body language in a mediation or determine credibility of a witness by looking through my computer? I believe that I’m very competent at discerning the little “tells” that people exhibit through their body and their voice. I am also convinced that my effectiveness as a neutral depends on my ability to establish trust and an emotional bond with the participants of a mediation or arbitration, which I thought I could only do if I was in the same room. Participants need to believe that I am neutral, fair, and trustworthy, or they will question the process. I couldn’t imagine how I would be able to use those skills remotely. Additionally, I was concerned that I would be overly distracted by managing the technology of the videoconferencing software, which would be both disruptive to me and disconcerting to the others.
In the last two months, since the shelter-in-place rules have been in effect, I have had the experience of using videoconferencing technology multiple times. I’ve participated in mediations, arbitral hearings, and social gatherings. To my pleasant surprise, videoconferencing has worked much better than I anticipated, and I no longer hesitate to use it. To ease me into the process, a professional colleague arranged for a trainer to teach several neutrals how to use Zoom, a popular low-cost videoconferencing platform.
While there have been articles in the press regarding the security of Zoom, all of the early criticisms of this platform have been resolved to my satisfaction. The company is committed to continuing to improve its security. Additionally, Zoom’s features seem especially well suited to the practice of having multiple participants meeting together and separately in a virtual space.
Here are tips on how to make videoconferencing work for you and your clients. First, the greatest challenge neutrals face is to get counsel and parties who have never used videoconferencing in a mediation or arbitration to try it. While it’s hard to imagine any professional that hasn’t been exposed to this technology in some manner during the “lockdown,” many counsel may still be nervous about using it for a hearing or mediation. I try to overcome this resistance by offering free training to any party that wants it. I had the benefit of an excellent trainer and will pay for his services for any potential participant that wants to take his training.
Prior to the mediation, I circulate a “cheat sheet” to the participants. Importantly, the cheat sheet must have the fail-safe conference line that I use as a backup in case of a major technology failure and my cell phone number. It also has the phone number to dial into the Zoom meeting in case the audio is poor, and the conference ID number and password, so a participant would not need to search for it.
My office requests all of the parties’ cell phone numbers and creates a list of participants, organized by client, which I keep next to me during the session. Most of the parties send me visual contact file cards that I save to my computer and my phone, so that when they text or call me their name comes up instead of a strange phone number. Do a trial run with the participants to make sure everyone is able to master the technology.
Before starting, I create multiple “breakout rooms” that mirror the physical rooms that I would use in an in-person meeting. I also check my audio, both speaking and hearing, via the pop-up that appears when you start the meeting. I think this is a “must-do” to avoid the embarrassment I experienced at my first trial run when I couldn’t hear any of the participants. I also disable the function that allows people to return to the main room on their own or to record the session.
I set the parameters for the conference by keeping everyone in the “waiting room.” This prevents unwanted participants from “Zoom bombing” and completely resolves this widely publicized practice. When we start, I admit everyone into the main. It’s possible to control whether a participant’s video and audio are off/muted when they join the meeting. My preference is to have it on and allow participants to get settled before engaging. If a participant’s name isn’t attached to their video image, I explain how they can rename themselves and ask them to do so. I also go over the logistics of moving them into separate rooms. I explain that, like an in-person mediation, I wouldn’t come into their room unannounced. I tell them that I will text them when I want to meet with them or restart the arbitration hearing. Having associated names with phone numbers before beginning is very helpful.
In my mediations, I give my standard comments about mediation and my confidentiality rules. Then, I move people into their respective rooms. All has gone very smoothly in my mediations and I have been able to move seamlessly from room to room. It is my practice to require defendants in my mediations to prepare draft settlements. Zoom allows a party to share their screen, I’ve done this with the draft settlements, and in many cases the parties have made a few edits on screen in front of everyone and the agreements have been finalized before we ended the conference. It is even possible for the parties to electronically sign the agreement with the use of additional software. While I miss the person-to-person contact, videoconferencing has not been nearly as limiting as I had thought it would be in mediations.
Arbitrations are even more straightforward because there is less need to move people into separate rooms, except during breaks in the hearing. Counsel quickly become accustomed to speaking into their computers. Also, the sharing of documents by sharing a computer screen is an improvement over many hearings where the panel is often trying to locate a document in their briefing books. Instead, everyone is looking at the same document at the same time.
However, using videoconference is more taxing than in-person meetings. It requires you to focus on the screen. You are constantly on view. If you look down to your phone or another screen to check your emails, everyone will notice. And, if you leave your desk to go to a nearby bathroom, be sure to mute your computer, unlike what a Supreme Court Justice failed to do recently. Because the process is more exhausting, more breaks should be allowed, and I provide an ample lunch break to regroup. Participants come back after lunch much more refreshed.
By the time of publication, all 50 states will have “reopened” to some degree. But there is still an unwillingness of many people to travel and meet in-person. Social distancing is the norm for many places, especially New York, Washington, D.C., and other large cities. Videoconferencing is here for now and for many months to come, but it may also be the wave of the future as counsel and litigants recognize the savings from its use.
John Bickerman is an arbitrator and mediator with Bickerman Dispute Resolution, PLLC, a nationwide practice with offices in New York, New York, and Washington, D.C.
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