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Litigation Journal

Fall 2021: Discovering

Practical Advice for Virtual Mediation

Joseph P Esposito


  • Virtual mediation may be the best available option for resolving pending cases and pre-litigation disputes.
  • Virtual mediations have been and can be every bit as successful in reaching resolution as those conducted in person
  • Virtual mediation can help to reduce the negative emotions in particularly acrimonious cases.
Practical Advice for Virtual Mediation
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Given the cost and time savings, we can expect remote mediation to persist long after the COVID-19 pandemic is behind us. Indeed, some observers expect that at least half of all mediations will continue online to reduce expense, increase convenience, and facilitate scheduling. Court dockets, clogged before the pandemic, suffer ever-increasing backlogs. Technology makes remote mediation quite feasible and accessible. Thus, virtual mediation may be the best available option for resolving pending cases and pre-litigation disputes.

Many essential aspects of mediation are the same, whether they are in person or virtual: determining when the mediation should occur to best balance the parties’ need to possess sufficient knowledge to reach a resolution, while minimizing the legal fees they have to incur; selecting the right mediator for the case; preparing effective written mediation statements that provide the mediator with the necessary information to understand the issues and help the parties to resolve the dispute. But there are significant differences between virtual and in-person mediations—some positive, some negative—and it is critical for both counsel and the mediator to have strategies that account for those differences.

Rather than being in physical rooms, participants in remote mediation occupy virtual rooms. Depending on the mediator’s approach, the parties may remain together in the same room for negotiation or, more typically, are moved to separate virtual breakout or caucus rooms. As in in-person mediations, the mediator moves among the breakout rooms, but without adding a single step to his or her pedometer. Someone at all locations where participants will be needs to have a basic familiarity with the technology platform, and the location needs to have sufficiently strong internet connectivity, with good-quality audio and video, to facilitate uninterrupted sessions.

Virtual mediation can help to reduce the negative emotions in particularly acrimonious cases, at least in the sense that the parties are not in the same physical room or even in the same location. Often the parties at in-person mediations have made it clear that they did not wish to be in the same physical space as their adversaries, even briefly, and occasionally did not even want to run the risk of seeing them. Virtual mediation can be a positive in this respect.

The parties can be more physically comfortable sitting in their own homes (often with their pets appearing on screen) or offices for a virtual mediation. I have long thought that it might be more conducive to settlement to do mediations in the comfort of a home, with easy chairs, pleasant surroundings, and snacks, as opposed to a sterile office space. The session can usually go longer when mediating virtually. There is no need to rush out to catch flights home, or even to move cars out of a parking garage before closing time, and there is much less looking at watches as the day goes on. These are some of the favorable attributes of virtual mediations.

There are negative attributes as well. In virtual mediation joint sessions, it is more difficult, indeed probably impossible, for counsel and parties and the mediator to observe fully the body language of the other parties. They can still see the face and shoulders, but such a narrow view probably diminishes the ability to assess the reactions of adversaries to statements or proposals made. A virtual format definitely eliminates picking up on glances between counsel and clients, which can be very telling signs. Given that most mediations are in joint session for a relatively small fraction of the total mediation time, this is likely not a significant detractor for counsel and the parties. Good mediators in private virtual caucuses will compensate by focusing more on facial expressions and vocal inflections, as well as by endeavoring to elicit more verbal signals to get to what may be needed to reach a deal.

It is more challenging to maintain an “all in this together” mediation spirit when the parties and counsel are all in different locations in a virtual mediation. It was important for counsel to explain to their clients before in-person mediations that they take time and require patience, perseverance, and a lot of plain old sitting around. That forewarning is even more important in the virtual mediation world. When the parties are not in person in the same location, two things can happen that are detrimental to a successful mediation. First, it is easier for the parties to adjourn the mediation to another day when a thorny issue arises, rather than trying to stick it out and get to settlement. Second, parties may be more easily distracted—by colleagues, family members, pets, the phone, the doorbell, or the refrigerator—when sitting at home or in one’s own office. Counsel must make sure that their clients don’t give up too easily, don’t ask to adjourn to another day too readily, and instead that they engage fully and pay attention throughout the mediation, just as if they were in the mediator’s conference room. Occasional pep talks may be necessary.

If the parties and counsel are located in different time zones—frequent in patent cases, to be sure, but I also had a remote mediation in a defamation case with a foreign party—there is a challenge not encountered when everyone travels to one physical site. When should the mediation begin and end to maximize the time available for the mediation while accommodating the time zones and sleep schedules of far-flung participants?

Beyond recognizing the positive and negative differences between remote and in-person mediation, several additional practical points must be addressed in virtual settings. Proficiency with the platform is essential. Zoom may be the most common and well known, but there are others. A fundamental working knowledge of how to use the platform includes how to join and rejoin a meeting, mute and adjust the volume, and turn the video on and off. While, for many of us, 2020 was the year of trying to avoid the virus and learn to use virtual conference platforms, not everyone is fluent. In a virtual hearing posted on YouTube, a lawyer appeared as a talking kitten because neither he nor his assistant knew how to adjust the filter. In mediations with many participants, it may be advisable to schedule a quick technology dry run.

The mediation agreement should be executed in advance, because the parties will not be able to pass it around for execution. It probably would be advisable—though not essential—to do so in the in-person world, too. Party attendance lists should be updated to show the authorized participants who have executed the mediation agreement. Plan for the contingency that someone who has not executed the mediation agreement and is not authorized to participate in the mediation may attempt to join. The mediator or other host can act as gatekeeper if the videoconference is structured so that anyone joining must first enter a virtual waiting room. More challenging is the situation in which someone not a signatory to the mediation agreement is sitting in the same physical room with an authorized participant, perhaps unknown to the parties and the mediator. The mediation agreement should anticipate the situation and require that only signatories will be allowed to be in the room.

The mediation agreement should also include a choice-of-law provision. There are concerns that mediation confidentiality may be less secure in virtual settings involving participants in different jurisdictions, because some courts may not respect the choice-of-law and confidentiality provisions in the mediation agreement. An in-person mediation conducted in Colorado pursuant to an agreement with a Colorado choice-of-law provision was at issue in Larson v. Larson, No. 16-8065 (10th Cir. Apr. 27, 2017), when the court of appeals issued a nonprecedential order affirming a Wyoming magistrate judge’s piercing of the confidentiality provision based on Wyoming law. The takeaway—for all mediations, both in person and online—is that the mediation agreement should make clear that confidentiality may not be absolute if a court decides otherwise.

Other information or documents necessary or helpful to the mediation process should be distributed by email ahead of time. If a party intends to use any exhibits during the joint session, it would be prudent to share them in advance with the other parties and the mediator, rather than risk relying on the screen-sharing feature, which can be challenging to use. Likewise, if there are documents that a party wishes to show to the mediator during the private caucuses, it is probably preferable to send them to the mediator in advance or provide them via email during the mediation.

I have been pleasantly surprised by how reliable the technology has been. The problems I have experienced so far have been relatively minor and easy enough to address, such as brief pauses, freezes, dropped audio, and background noise when someone forgets to mute a microphone. It is prudent, nonetheless, to anticipate technical issues and have backup plans, including a contact for technical support.

Open, sensitive microphones can pick up comments that were not intended for dissemination. Counsel should be aware—and make their clients aware—that they need to be on mute whenever they are not speaking. Keep in mind, too, that some people are able to read lips—we all figured out what certain football coaches were saying to referees—so it is also best to either turn away from the camera or turn off the video when engaging in a conversation that is not intended to be shared.

Finally, counsel should keep in mind, and emphasize to their clients, that a six-hour virtual mediation often feels like a 14-hour in-person mediation. Videoconference fatigue is real. When the mediator is with the other party in caucus, counsel and clients should get up from their seats, stretch, and move around to help stay alert and focused.

Virtual mediations have been and can be every bit as successful in reaching resolution as those conducted in person. Virtual mediation is likely to continue to play an important role when case participants are scattered around the globe, clients want to save money on travel, parties are too infirm to travel, or there are safety or other concerns in highly acrimonious disputes.