November 30, 2020 Practice Points

Five Tips for Successful Virtual Mediations

Virtual mediations are likely to become much more common and preferred by clients.

By Ebony S. Morris

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The COVID-19 pandemic has undoubtedly forced practitioners to adapt to a virtual world of litigation. Although in-person mediations have been the normal and preferred way of resolving cases, practitioners must become accustomed to the new normal, as courts are mandating virtual hearings, conferences, and even trials to further litigation during the COVID-19 pandemic. To adapt to virtual mediations, practitioners should consider the following tips.

  1. Prepare
    While most are accustomed to technology, it is easy to underestimate the benefits associated with preparing for virtual mediations. However, virtual mediations require more, not less, preparation. Mediators generally require position papers along with any applicable exhibits prior to the mediation (some mediators may require position papers and exhibits at least five days in advance of the mediation). Whenever possible, practitioners on each side should consider discussing positions with the mediator prior to the mediation and whether any exhibits should be shared during the mediation. Additionally, practitioners must prepare clients prior to the mediation. Practitioners should provide detailed explanations to the client regarding any mechanics involved with virtual mediation and consider conducting a test run for the mediation and incorporate all aspects of the proceeding.
  2. Become Comfortable with Technology
    Technology is vital for virtual mediations. Prior to the mediation, practitioners should arrange to have access to an IT technician who will be available to assist with any technical glitches. Practitioners should avoid handling the technical aspects unless it will not be distracting and arrange to have someone assist with handling the technology so they can focus during the mediation. Practitioners should also consider a backup technology plan in case the chosen platform has any technical limitations.
  3. Know the Rules
    This point is a given. Practitioners should know the rules associated with the mediation in advance. For example, who can mute the host, mediator, or parties? Will the mediation contain short or lengthy sessions with formal offline breaks? Will private caucuses be done in remote virtual rooms, or will the parties leave the joint sessions and rejoin when ready to resume discussions with the mediator? Knowing the rules of virtual mediation is crucial for a successful and smooth proceeding.
  4. Dress Appropriately
    Although virtual mediations are somewhat less formal than in-person mediations, it is nonetheless a legal proceeding. While working at home has become the new normal, practitioners have become relaxed with regard to professional appearances. However, to avoid admonishment, and of course maintain professionalism, practitioners (and clients) should look the part for the mediation.
  5. Ensure the Integrity of the Process
    Practitioners are obligated to ensure privacy and confidentiality during virtual mediations. Counsel should alert the mediator if privacy or confidentiality of one of the parties has been compromised during the virtual mediation. Prior to the mediation, practitioners should alert clients that recording or allowing other parties to observe the mediation violates the terms of the mediation proceeding and is expressly prohibited.

As social distancing increases and virtual technology advances, practitioners must embrace this new technology and new normal. Although the current restrictions are temporary, it may be months (or years) before practitioners and clients feel comfortable gathering in person for all-day mediations. Virtual mediations are likely to become much more common and preferred by clients. The foregoing tips should help increase success with virtual mediations.

Ebony S. Morris is an attorney with Garrison, Yount, Forte & Mulchay, P.C., in New Orleans, Louisiana.

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