Online Mediation: COVID-19 and Beyond

Two months ago the idea of online mediation simply sounded “intriguing.” COVID-19 changed the interest level substantially. Lawyers, clients, principals and meditators need to understand online mediation and know that it can be effective, can be trusted and has benefits that will last beyond COVID-19.

Below we consider the needs, interests and best practices of the lawyer, client and mediator in online mediation.

Attorney’s Perspective

Online mediation affords an alternate and effective way to serve clients.

Mediations start with the attorneys. Attorneys must, as always, select a mediator whose judgment and experience they trust. With online mediation they now must additionally select a mediator they know has been trained in online mediation and who understands the additional responsibilities that are inherent in conducting mediations online.

Paramount for an attorney to understand is that, with the exception of face-to-face in person communications, everything that can be done at in-person mediations can be done online.

Joint meetings, private caucuses, private meetings between attorney and client are all possible. A properly-trained mediator will demonstrate and assure everyone that the parties/attorneys/principals will have the privacy online to negotiate safely and successfully.

All persuasive demonstrative exhibits (documents, videos, spreadsheets, even whiteboard examples) can be shared online.

Finally, with digital signatures, a final enforceable mediated agreement can be signed. A final resolution can be accomplished.

Client’s Perspective

There are significant benefits to online mediation for clients and their principals.

Online mediation can offer a quicker and less costly result. Scheduling is easier because there are no limits on who can attend because of geography and the scheduling problems caused by travel requirements. The cost of travel (air, hotel, and other opportunity costs related to “travel” time) is saved. The end-result of easier scheduling is that the client can get a final enforceable resolution sooner.

Online mediation can also afford a safer environment for parties in high-conflict disputes when actually being in each other’s presence feels uncomfortable. It may also be more convenient for people with disabilities and illnesses that otherwise make travel and in-person attendance problematic.

Best Practices for a Successful Online Mediation

The most successful online mediations have the same level of preparedness as those that are in physical rooms. A best practice is for everyone to remember that appearing online requires the same attention to detail as appearing in person. Attorneys work with their clients on their appearance and demeanor (this includes the visual background and avoiding distractions). Attorneys will also practice with clients using Zoom and check the video, audio and view functions.

Attorneys have a checklist for their clients to include things like: make sure clients have a charger available for their tablet/smartphone; mute cellphones during mediation; close other software on the computer to insure the best possible connection; and make sure everyone has updated cellphone numbers for the always possible “connection failure.”

Mediators train to use and then practice using Zoom. Mediators adjust Zoom settings to ensure control and privacy (no video/audio recording!).

Anyone inexperienced with online mediation may understandably not trust that they can speak privately when necessary. At the initial stages of mediation the mediator can create private conference rooms (“breakout rooms” in Zoom parlance) and actually demonstrate to the parties that each side can confidently talk privately amongst themselves and with the mediator by actually switching back and forth between breakout rooms. By “proving” this at the outset it removes a big element of potential mistrust.

There are simple things an effective mediator does to help everyone communicate more effectively online. The mediator makes sure that everyone understands the mute function and how to speak and understand others without interruptions. Body language is always important in negotiations. Mediators should remind everyone that using the Gallery View enables everyone (albeit just shoulders and head) to still evaluate everyone’s body language.

There can be significant differences between being online and being in person with respect to possible feelings of isolation and “perceptions” of inequality or unfairness. In a two-party mediation, for example, when the mediator leaves one party to chat privately with the other party, the mediator must pay even more attention to the time spent with that party and, if more time is necessary, the necessity of periodically checking in with the other party so that they don’t feel abandoned or less-than. In this vein it is good practice that when a mediator “leaves” one side that the mediator gives them some “homework” or an “assignment” that will both keep them engaged and will inure to finalizing a resolution. Attorneys should also be sensitive to this phenomenon and be prepared to keep their clients engaged when they are left alone.

The best practice for a mediator is to have reminders that mirror the attorney checklist, above, but includes a Plan B if connections are lost. The mediator should have a digital signature program and have a “shell” mediated settlement agreement ready for finalization when an agreement is reached (always an optimist!). A signed enforceable agreement ending the dispute and giving peace of mind to all of the participants is the ultimate goal of mediation.

In summary, again necessity is the mother of invention. Although online mediation has been available for years, the need for online mediation became acute with COVID-19. We now know that we can meet mediation needs online and, perhaps more importantly, we have learned the value of online mediation beyond COVID-19 or any like-kind environment.