by Hon. Elizabeth Laporte (Ret.), Quyen Ta and Suzanne Nero
King & Spalding
Due to the coronavirus pandemic, most mediations are now being conducted virtually. While some resolution centers have begun to re-open (and in some places, only to shut down again as government restrictions resumed), most parties are still only attending virtually. As a result, the days of a full-day meeting around a conference table, catered buffet lunches, and a creative variety of individually portioned snacks have given way to the new reality of virtual mediations, complete with interruptions, reminders to unmute, and a trip to your own kitchen for lunch. While virtual mediations pose some distinct challenges, they can be effective with proper preparation and expectation setting. Indeed, they even provide some unique benefits, such as making it easier for key decision-makers to attend, as well as the elimination of the time and expense associated with travel.
How It Works
Virtual mediations are conducted via a videoconferencing platform such as Zoom. Much like in an in-person mediation, the parties will spend most of their time in breakout rooms. At the beginning of the mediation, the mediator or moderator will assign each party to a breakout room, where counsel can communicate privately with his or her clients. The mediator will go back and forth between the breakout rooms and discuss issues with each party separately. To avoid surprise, most mediators will text before entering or ask to be texted when a party is ready for the mediator to re-enter the break-out room. Within a breakout room, a party can share its screen to display exhibits, PowerPoints, photographs, or other relevant information.
The mediator will usually also set up a separate breakout room where opposing counsel can talk directly to each other outside the presence of their clients, or an attorney and the mediator can talk one-on-one. Many mediators make it a practice to ask counsel what accommodations would be most helpful in a given mediation, but counsel should not be shy about raising the issue themselves if they do not.
Counsel should be sure to prepare their clients for the possibility that the mediation starts in a communal room that includes opposing counsel and their clients. A mediator will sometimes join all the parties together initially so that they can introduce themselves before going to their breakout rooms. However, parties can be admitted to separate breakout rooms at the outset before a joint meeting, if any, is held. Some mediators discuss with counsel in pre-mediation calls whether to start in joint session or instead start with separate sessions, and if so, which party the mediator should meet with first. If a client is concerned about seeing an opposing party, his or her counsel should notify the mediator in advance of the mediation so that alternative arrangements can be made.
Safety and Security
Most alternative dispute resolution (ADR) providers such as JAMS have gone to extensive lengths to make virtual mediations secure. For example, JAMS uses the Zoom HIPAA-compliant platform for all scheduled virtual proceedings, including mediations and arbitrations. This Zoom platform incorporates the necessary security features to satisfy the requirements of the Health Insurance Portability and Accountability Act (HIPAA). Virtual mediations are password protected, with the password given only to those who have been invited to participate. Moreover, the mediator or a staff moderator who assists in setting up the breakout rooms at JAMS is responsible for assigning each person to a breakout room. Anyone not on the list will not be admitted.
Some clients have concerns about a mediator or others listening in to a conversation in the breakout room. Such concerns are almost certainly unfounded with reputable mediation services. JAMS ensures that the recording function of the videoconferencing platform will be disabled and requires parties to sign agreements stating that they will not record the mediation and that they will maintain the confidentiality of the proceedings (and can help set up DocuSign for this purpose, as well as for settlement agreements reached at the mediation). Nonetheless, having a separate email, text chain, or dial-in number available to clients where sensitive conversations can be held outside of the breakout room often eases these concerns. But be sure to mute your audio on the videoconferencing platform during any confidential side-calls with your client.
Succeeding Requires Preparation on Logistics, Not Just Substance
The most successful lawyers in virtual mediations consider the logistical details as well as the substance of the case. The following tips can help ensure the mediation runs smoothly:
Do a test run: Counsel should arrange a test run with their clients shortly before the mediation, if the mediator has not already done so, to ensure everyone is comfortable with the videoconferencing platform. Some mediators will arrange for this as well. Prior to the mediation, all participants should know how to mute and unmute their audio and turn their video on and off, as well as how to frame themselves in front of the camera. Some clients may be technologically challenged. If so, counsel can explore alternatives such as having them appear in counsel’s office. At least one member of each party should be able to virtually share documents in cases where the need may arise.
Mediation services are generally happy to provide counsel with login information to do a test run in advance on the actual platform that will be used for the mediation. For example, JAMS can provide assistance during practice sessions.
It is ideal to do this test run around the time when there will be the greatest strains on an internet connection. An internet connection that is fast in the evening might be much slower in the middle of the day when other members of the household are using it. Counsel should encourage their clients to ensure the best internet connection possible.
Have a backup plan: Technological difficulties can sidetrack a mediation. Some clients, for example, have retreated to second homes in more remote areas with a less reliable internet connection. Counsel should provide their clients with a dial-in number before the mediation to call in if necessary. Cell phone and, if needed, landline telephone numbers should be shared with each other and at least for lead counsel with the mediator. While not ideal solutions, these backup measures are vital in case anyone on the team faces technological difficulties.
Think about the optics: In some ways, a virtual mediation offers a more intimate experience than one conducted in person because it provides a glimpse into people’s homes and their lives. Counsel should plan for where each person attending the mediation will be to ensure the optics of a person’s location are professional and appropriate. Counsel should be conscious of the message that might be conveyed by the background behind each participant. Mediators will be looking for clues that allow them to connect with participants because they likely will not be able to see body language below the shoulders.
But optics go beyond the background. Details such as lighting, sound, and privacy should be considered prior to the mediation.
Take breaks, but do not log off: One thing that has not changed about virtual mediations is the amount of downtime. Counsel should prepare their clients for long stretches of waiting while the mediator is with another party. Stepping away from the computer is often helpful and necessary, but counsel should make sure their clients know not to log off from the mediation during a break. If they do, the mediator will be forced to re-admit them into the room before communications can continue. Instead, counsel should encourage clients to mute their audio and turn off their video if they need to step away momentarily.
Embracing the New Normal
Many lawyers and clients may be reluctant, at least initially, to participate in a virtual mediation. However, most mediators, including Judge Laporte, say their success rates have not been significantly affected, and their techniques are improving every day. Regardless, even in-person mediations in the future are likely to feel much different. A mediation with attendees wearing masks and trying to maintain a distance of at least six feet will affect the ability to read facial expressions and to establish as close of a personal connection. And even with those precautions, those at higher risk from the virus will likely choose to participate remotely even if others do not, at least until there is a vaccine and/or a reliable treatment.
In short, counsel should prepare their clients that in this new normal, virtual mediations are inevitable. Waiting for the “good old days” to resume can waste precious time to resolve cases that may drag on indefinitely due to the widespread postponement of civil jury trials, while bleeding resources in discovery and other pretrial preparation. With proper preparation, a little flexibility, and a willingness to embrace the new normal, virtual mediations can be productive and lead to successful resolutions of even the most complex matters.
Hon. Elizabeth D. Laporte (Ret.) is an arbitrator, mediator, special master/referee and neutral evaluator at JAMS in San Francisco. She handles matters involving antitrust, business/commercial, civil rights, employment, environmental law, insurance and intellectual property. She can be reached at elaporte@jamsadr.com.
Quyen Ta is a Partner in King & Spalding’s San Francisco office. Quyen focuses her practice on consumer class actions, international arbitrations, and complex commercial trials and disputes.
Suzanne Nero is Counsel in King & Spalding’s San Francisco office. Her practice specializes in complex commercial litigation with a focus on antitrust and consumer class actions.