November 26, 2019 Practice Points

The Mediators Speak: Party Participation by Telephone or Video Conference—Does it Work?

Two mediators offer recommendations and rules for getting remote-participation to work as part of a mediation.

by Jeff Kichaven and Paul J. Van Osselaer

Paul J. Van Osselaer:

The answer is “yes, if (and—sometimes—because) it needs to.” In-person attendance by a party or party representative with full authority is the gold standard. It’s required for almost all court-ordered mediations and is the default for all mediators. Whether a person has “full authority” is for another day, but nothing beats in-person communication and exposure to the dynamics of a mediation.

Sometimes, though, the right person’s schedule conflicts with others’ needs on the timing of a mediation. Skilled lawyers recognize that a distant knowledgeable person is better than someone in attendance who has limited knowledge or authority. So, I have some “rules” if we can’t find another date for the mediation.

1. Participation of a party by telephone or video should be agreed to by the other parties. In larger multi-party mediations, that may be impractical, so I’ve been known to give on this for minor players. But counsel for the remote participant needs to notify other parties in advance that the participant will not be attending in person, allowing others to object or reschedule.
2. Video is far preferred over telephone, especially for major substantive conversations. [Tip: Make sure your mediation caucus room is set up for any needed video technology. Mediating by laptop is not the best unless you like your mediator leaning over you. We need to see each other.]
3. I need to be able to speak with remote parties to the same extent I would if they were there in person. I need to say “let’s get your client on the phone/screen.” The settlement process benefits from parties listening to lawyer-mediator dialogue.
4. The remote participant must be available at all times during the mediation—living on our schedule. It should be the same as if they were present in person. When I walk into the room, they must be on the video or quickly available by telephone instead of hearing “she stepped out” or “he’ll have to call you back.” Think of it as “participating by telephone/video” and not just “being available by telephone/video.” [Tip: That difference in phrasing—and meaning it—helps when you want someone else’s buy-in.]

About five years ago, I mediated a coverage case in California, where one key party had no one in attendance. Both the lawyer and client participated by video from a conference room in New York. I had my doubts, but to answer the original question: It worked—because it needed to. And it settled.

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Jeff Kichaven

Sometimes, it just has to.

Mediations often involve participants from all over the country; at times, all over the world. It can be a challenge to find a date and place for everyone to attend in person. The challenge is more difficult when we add in the time constraint of getting a mediation scheduled before a trial date, motion hearing, expert deposition, or other event. Sometimes, someone may just have to appear remotely. While it’s not optimal, we have to make it work.

How can we do that?

While every situation is different, here are three tips which, generally speaking, help preserve the quality of the mediation even though someone is participating remotely.

1.  No Surprises. If you intend to have someone participate remotely, raise it with the other side in advance, or allow the mediator to do so. If the other side shows up with everyone in tow, sometimes having traveled great distances to get there, and are surprised (and disappointed, even upset) to learn that someone important on your side is participating remotely, there’s a bad moon on the rise.
Similarly, if you are concerned that someone important on the other side may participate only remotely, raise that directly or through the mediator, too. Then you can decide whether to go forward, and you protect your side from unnecessary surprise, disappointment and antagonism when the mediation day begins.
2. Prepare Your Side. Though each side has down time during the mediation day, all participants must be ready to participate fully at any moment. We know remote participants will be doing other work during the day, but they, too, must be “on call.” Make sure you know how to get in touch with them at all times, and make sure they know to be available. Set up the technology in advance both to communicate during the day, and to get settlement documents signed and returned when you make your deal.
3.  Reassure the Other Side. At the beginning of the mediation day, meet with the other side, if for no other reason than to assuage any lingering disappointment or antagonism over the fact that someone important on your side is participating only remotely. Reassure them regarding the status and role of your in-person participants; explain the nature of their authority; describe your remote participant’s day-long “on call” commitment to the process; talk about the technology you will use to communicate during the day and to transmit settlement documents.

Perhaps most importantly, do it all in a genuine spirit of collaboration, appreciation and respect. Chances are, it will all be good.

Jeff Kichaven is with  Jeff Kichaven Commercial Mediation. Paul J. Van Osselaer is with Van Osselaer Dispute Resolution PLLC.

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