Hon. Lynn O’Malley Taylor (Ret.) | JAMS

Let’s say you have just received an invitation to a virtual mediation. You really want to settle your case, but you have no experience with virtual mediations. You have so many questions: Will I understand how to use the virtual mediation platform? How easy is it to learn? Will my client be able to use the virtual mediation platform? Is the mediator going to be able to form a connection with my client through a computer screen? Will the mediation be confidential? Will it be private? What can I do to make the mediation successful?

Don’t panic! Everyone, including the mediator, is on a progressive learning curve. We learn something new every time we use virtual mediation. Soon you will be comfortable using this great option to resolve your cases.

What are the advantages of virtual mediation? Flexibility is a major one. Clients and attorneys can be scattered around the world. Nobody will have to worry about getting stuck in traffic or missing a flight. Another advantage is that you have a surprisingly intimate view of each other so that you can focus on not just what is being said, but also facial expressions and body language. Rather than burying everyone in paper during the mediation, another advantage is that you can share and modify documents on your computer.

Yes, you can figure out how to participate in a virtual mediation. You and your client(s) can practice using a virtual mediation platform with your JAMS case manager and your mediator. The platforms are easy to learn and easy to use. You can also schedule a trial run with your JAMS case manager and your mediator a few days beforehand.

Yes, the mediator is going to be able to make a connection with your client(s). Rarely do you get as close to a person in an in-person mediation as you do in a virtual mediation.

Yes, the mediation will be confidential. The JAMS case manager will send you a link with an entry code. Once you sign on, you will be placed in a waiting room and then moved to a breakout room(s) with your client(s). No one can hear what you discuss with your client in a breakout room. Your mediator will call or text you when he or she is ready to enter the room. You can do the same when you want him or her to return to the room after having a private discussion.

Yes, the mediation will be private. You and opposing counsel will provide the mediator’s case manager a list of all the participants. Only those on the list will be allowed into the virtual waiting room. Once the mediation commences and all the participants have been placed in breakout rooms, and no one else can enter.

What can you do to make the mediation successful?

1. Configure your room.

• If you are not using a device that has a built-in webcam with a microphone, purchase a webcam and attach it to a tabletop tripod.
• Elevate your computer. (Books work well.)
• Make sure your face is well lighted.
• Use a non-distracting background. (Do not have a window open behind you, as your face will be a silhouette.)
• Wear solid-color clothing that will not distract the participants.

2. Have a practice virtual mediation session with your client, JAMS case manager and mediator. Address everyone’s questions and work out any technical issues.

• Who will be attending the mediation?
• Is there anyone who is not scheduled to be at the mediation who should be invited?
• Are all the decision-makers available?
• Where are the parties located?
• Does anyone have any time constraints or conflicts?
• Does everyone understand that they are not to record the mediation?
  • (The virtual platform record function will be disabled by the mediator anyway.)
• Is there anything not stated in the mediation statements that the mediator should know prior to the mediation (e.g., client-control issues, insurance coverage issues, unmentioned settlement discussions, etc.)?
• Should you have a proposed settlement agreement on your computer ready to share? (Documents can be shared and worked on collaboratively using the screen-share function and signed remotely using DocuSign.)

3. Be prepared and have a positive attitude, as you would for an in-person mediation.

You will learn new skills doing a virtual mediation and expand your practice in a creative and transformative way.

Lela Hollabaugh | Bradley

Few lawyers considered mediation using web-based video conferencing before March of 2020. Now lawyers are not only considering doing it, it is working. Below are a few thoughts for success.

Logistics

• First and foremost, make sure to use a secure video conferencing platform. Client confidentiality remains essential.
• Each party to the mediation should set up their separate video conference. This allows the attorneys and representatives who are participating to have their own “conference room” to discuss the facts and any planned settlement offers. The mediator can join as needed, and you will always know when the mediator joins – just like they walked into the room.
• If your mediation requires a joint conference among the parties a separate video conference link may be used.
• Test the video conferencing with the mediator before the mediation begins to ensure that everyone knows how it works and that those persons who require it have video capabilities.

The Mediation Process

The mediation in which I was involved recently proceeded just like a normal mediation. All parties and their lawyers talked with the mediator and expressed their positions. Everyone could see each other just as if we were in person. Demands and offers were exchanged with positions and reason to support each. I did not observe any downside to conducting a virtual mediation. However, I can foresee some minor difficulties in cases where the mediator and the parties need to look at documents, drawings or photographs together to fully understand their importance.

To address issues that may arise with viewing documents, consider sending the mediator the key documents before the mediation and confirming with the mediator that you will be able to send the mediator documents electronically during the mediation. You may also need to share documents with the mediator and your clients from your computer while in the video conference. Simply, these issues can easily be addressed.

If a settlement is reached, the mediator or one of the lawyers can document the key terms of the settlement and email them to counsel and the parties for signatures. Again, this should work just as if you were mediating in person.

Overall Assessment

Why have we not done this before? It is so easy. It is less expensive. There was no travel for anyone involved. More stakeholders for each party may participate if needed. The “down time” each side experiences during a mediation is mitigated because you can put the audio of the video conference on mute and turn off the camera. A simple email or text to your client team alerts them to rejoin the video conference.

While I am certain technical difficulties will sometimes interfere with a virtual mediation, with practice and patience those difficulties can be minimized and overcome. I wonder if we will ever return to in-person mediation, except in the rarest of cases.

Donald R. Frederico | Pierce Atwood

Like most aspects of litigation, mediation is a very personal pursuit. So much depends on the credibility and communication skills of the participants. Equally important are the participants’ non-verbal cues, including tone of voice, facial expressions, and body language. And a key to success of many mediations is the ability of the mediator to develop a rapport and trust with all of the players. Just as online poker cannot truly replicate the in-person card game, so virtual mediation is not a perfect substitute for a mediation that takes place around an actual table.

Despite its deficiencies, virtual mediation has some advantages. If some participants are not located where the mediation is taking place, it can save them the time and cost of travel. It also may provide some greater flexibility in how the mediation is structured. And, of course, in times like these, there may simply be no alternative than to mediate online. But parties who do not have to go to the trouble and expense of travel, and configurations that do no leave people stuck in their break-out rooms, can also lessen the parties’ commitments to full engagement in the mediation process and getting a deal done.

Class actions may be less susceptible to the shortcomings of virtual mediations than other types of disputes. By the time many class actions reach the mediation stage, the lawyers for both sides will have gotten to know each other and formed whatever relationship they are going to form through court appearances and discovery. Also, class action mediation sessions typically are attended only by lawyers or business representatives who, if they are doing their jobs well, are not as driven by emotion as individual parties tend to be. Still, the personal touch can be important even in a class action mediation, especially in the interactions between the mediator and the representatives of each side.

Mediators can attempt to overcome, or at least mitigate, deficiencies in the quality of personal interactions by increasing their quantity. They can, for example, place more emphasis on pre-mediation videoconferences with each side of a dispute, as well as post-mediation videoconferences for cases that do not settle on the day of mediation. The more the mediator is able to connect both visually and audibly with plaintiff and defense counsel, the more likely they are to develop the rapport and trust that can mean the difference between success and failure.

R. Thomas Dunn | Pierce Atwood

With most of the country on stay at home orders of some variety and court closings, parties to claims, litigation, and arbitrations are adapting quickly to virtual litigation activities that are customarily done in person.  This includes virtual depositions, mediations, arbitrations, and trials.

In this post, I will talk about virtual mediations.

Contractual mediation is a requirement in many construction contracts to proceeding forward with litigation/arbitration.  There is often a period of time in which the mediation should be concluded before a party may proceed to the next step of dispute resolution.

No matter the parties to the case, it is customary for parties, their counsel, experts, and insurance representatives to meet in-person at the mediator’s office, one of the law firms, or some neutral location like JAMS and/or AAA’s offices.  The physical presence is an advantage in that it gets parties and their counsel together at the same place with one objective in mind — settle the case.  There is an unspoken “dance” that occurs whereby parties engage in substantive discussions for a period of time before “talking about the numbers.”  Many times a mediation does not settle until after pizzas are ordered and the moon rises. While the mediator spends time with one of the parties, other parties are left to talk about the case (or often whatever else is on their minds).  There is a lot of downtime.

It can take weeks/months sometimes to schedule a date that works for all interested and necessary parties.  If your deposition that took months to schedule is in April 2020, or if you have a claim that is time sensitive and you must proceed through the contractual mediation requirement, chances are you and your counsel will get out of your comfort zone and try out a virtual mediation.

While a mediator may modify the mediation process according to the particular facts, people, and procedural posture of the matter, a construction mediation normally goes through a series of familiar steps.  With social distancing amid COVID-19, construction companies and their counsel will have to convert to virtual mediations in the short-term, and perhaps it will have some lasting impacts as well.

Below is a general outline of what typically occurs in a construction mediation.  Contrasted against that in italics is how a virtual mediation would differ.  I will also highlight potential pros/cons for your consideration.  

Initial Scheduling Call:  An initial call with the mediator is often scheduled to discuss generally the nature of the dispute, pick mediation date(s), and set pre-mediation disclosure time periods.

• This is a great opportunity to perform the first test run of the video-conferencing platform and other connectivity issues for your virtual mediation.  Levels of sophistication and experience will differ for counsel during this call and it is better to flag the issues at this stage than to have the detract from the date of the mediation.  
• If severe technical issues remain during this initial video call for one party, a back-up call-in number should alleviate those issues promptly.  The mediator’s office should then work with that counsel to troubleshoot and resolve the issue.  
• The mediator should identify her office’s protocol and policies regarding virtual mediations including:
  • Identify the platform – zoom, webex, gotomeeting, google meet.  Most are using zoom right now, including JAMS.
  • Testing of connections.  There should be a formal testing of devices / connections before the date of the mediation.  The mediator must confirm with the attendees that the “tested device” will be the same device with the same internet connection as used on the day of the mediation.
  • Identify internet speed. 
  • Obtain each attendees mobile phone number. 
• The mediator should confirm the number of parties (need a separate breakout room for each party) and evaluate how many additional breakout rooms the parties anticipate they may need.     

Pre-Mediation Filings: These are memoranda filed by counsel before the mediation for the purposes of the mediation only.  They are protected as confidential mediation disclosures.  Many construction mediators strongly encourage these pre-mediation filings be shared with all parties while also inviting “mediator only” confidential submissions.

• No change in the process for virtual mediations.  

Pre-Mediation Conference with the Mediator: Given the complexities of construction cases, it is common to have an early, separate confidential caucus between the mediator and each of the parties.  In some cases, advance education of the mediator is performed through the use of experts or otherwise.  In some cases, mediators have traveled for two full days for such educational pre-mediation sessions with one of the party’s experts.  Normally, this pre-mediation call lasts under 1 hour and occurs a few days before the mediation, but after disclosure the pre-mediation statements. It is a productive for the party representatives to attend this pre-mediation conference.

• This is your second test run of the video capabilities.  Not only for the counsel, but also for client representatives who are attending remotely.  Technical issues should be resolved in real time during this call with the mediator and her staff.    
• Having the client representatives participate in this call is very helpful.  For some construction companies, any mediation will be new let alone a “virtual” one. It is important to have your client representative feel comfortable with the communication medium and get to know the mediator.  This is an excellent opportunity for the mediator to evaluate the parties herself before the joint session.  

Mediation Prep: This depends on the case and many other factors.  Ultimately, each party’s construction attorney (in consultation with the mediator) will perform the tasks necessary to be prepared for the mediation.  At a minimum, the construction attorney should talk about the strengths/weaknesses of the case and evaluate settlement ranges.  Beyond client communications, attorneys will prepare some sort of opening remarks or powerpoints regarding their client’s case.  There may be presentations by experts planned as well.  Some of these prep meetings occur in-person and some already occur virtually (particularly those with experts).

• Depending upon continued application of the COVID-19 outbreak, this preparation session will likely be held virtually as well which will give all participants in the mediation the ability to increase their comfort and experience communicating and making decisions via video-conference.  
• If there is a presentation to be given by counsel or the expert, a dry-run of the presentation can be performed ahead of the mediation.  Questions and uncertainties regarding conference room technology are eliminated if the presenter knows the platform being used for the virtual mediation.  In fact, the presentation can be recorded by the attorney/expert.  This “mock mediation” will allow for adjustments and comment from the client.  

Traveling to and Attending the Mediation: Customarily, parties travel to a neutral spot for a mediation .  For example, in a mediation I had, the parties traveled to Chicago (where no parties or counsel resided) because it was easy to travel they by those attending from the different parts of country.  For that mediation, we rented a few airport hotel conference rooms for a couple of days and conducted the mediation.

• NO TRAVEL NECESSARY!!!  Virtual mediations can be performed where each attendee is in a different location.  In many mediations, the question brought up is who will attend with authority.  Sometimes counsel reply that their adjuster will not attend the mediation, but will be available by phone.  Well, now that everyone is joining remotely, that excuse regarding participation is eliminated.  Same applies for key decision-makers within companies.  Even if they are not listed as an attendee, it is straight-forward to add an attendee to a zoom meeting if that becomes required.  
• COST SAVINGS!!! In addition to the convenience of virtual mediations, there can be a substantial cost savings associated with it.  Large construction cases often require more than one attorney to work on a matter.  While it may be cost prohibitive to bring 2-3 attorneys to a full day mediation, having those attorneys available from their desks when needed adds minimal cost and contributes needed perspectives given the information that those attorneys may possess about the matter (particularly in joint session). The cost savings can be substantial. A colleague recently told me that he participated a virtual mediation with 50 participants.  In previous mediation sessions, they all traveled to the locale of the mediator.  During the virtual mediation, there were no travel costs.  

Joint Session: The joint session is often the start of the mediation after the mediator gives her opening remarks about confidentiality and the mediation being a voluntary process.  The objective is to allow each party to concisely describe the merits of their position.  This advocacy is meant to highlight the strengths of a party’s case.  It is a unique opportunity to speak directly to the other side’s decision-maker without interruption.  The best approach is to be non-argumentative and factual.

• The joint session is setup in the common virtual room where all attendees have access on zoom.  You will see up to 49 faces on the screen at the same time. 
• The normal awkwardness in the morning of a mediation is present virtually just as it is in person.  The mediator can control the settings of the joint session much more than the mediator can control in-person attendees through the use of the mute button and other features.  
• The ease of presenting a powerpoint or documents is simple on zoom.  Each attendee has the ability to share her screen to show documents and walk through a presentation.  For document-heavy construction cases, no longer do you need to bring 5 bankers boxes with you.  You can rely upon what is in your network.  
• You do lose something by not being in a room together, but many of the non-verbal cues can also be delivered via video-conference if attendees have their videos active.  If the video is not active, then there is a downside because you have no way of really knowing if your adverse party is paying attention or not.  

Caucus / Breakout Time: After the joint session breaks, the mediator shows each party to their respective caucus room.  This is typically a smaller conference room where the parties wait for the mediator to come to them to talk about the matter.  There is often substantial downtime.  It is difficult to remain productive  on other activities (as the client or the attorney) when sharing a small conference room and not knowing when the mediator will knock on the door.

• In a virtual mediation, there are “breakout rooms” for each party.  These are virtual rooms that are limited only to the selected participants of that room.  No other party has the authority or access to enter the room unless the host (someone with the mediator’s office) provides access. 
• These rooms should be used in exactly the same manner as they are used in-person, except that it is easier to work on other matters while in caucus. 
  • This is a double-edged sword though. 
    • There has to be a clear commitment by all attendees to promptly return to the caucus room when the mediator announces she is coming to your room.  This is why mobile phone numbers are requested.  The mediator can setup group texts for each room signaling she is coming back into the breakout room.  This allows the participant to wrap up what they are doing and return to the zoom meeting.  Maintaining this client focus is essential or a mediation will fall apart due to the normal daily demands. 
    • While I recognize it may be challenging to juggle this with precision (mediations are exhausting — particularly the downtime), there can be some savings in attorney/expert time and in business interruption to allow for this increased flexibility.  
• Additional caucus rooms should be created if needed.  This is in lieu of the hallway / kitchenette discussions that inevitably occur between party representatives or counsel during an in-person mediation.  Having 1-2 extra rooms permits the mediator to “put the adjusters in one room” or “allow the principals to talk” without counsel present.  

Memorandum of Understanding:  Congratulations . . . you settled your case!  Now the mediator wants the parties to sign a “memorandum of understanding” — a term sheet of the conditions of settlement.  In particularly complex matters, the mediator may have asked your counsel to draft templates of these already to get a head-start.  In other cases, the mediator takes it on herself to draft the term sheet.  Either way, the goal is to have a signed term sheet by the conclusion of the day.

• Not much is changed here.  In fact, the process is probably streamlined.  Previously, the mediator would have to print a version of the term sheet, email it, or place it on a flash drive.  With a virtual mediation, the document can be shared and edited in real time by the each of the participants.  This dynamic editing removes the complications of looking over each other’s shoulders to read a document at the end of a long day.  There is much more control through using zoom or a similar platform.  
• Electronic signatures may be applied to the document through docusign or a similar provider.  
• The signing and verbal acceptance of the memorandum of understanding may also be recorded by the mediator from the zoom platform. If a settlement had to be enforced, a video would be very persuasive evidence that would not be customarily available in an in-person mediation.  

In looking at each of these stages, there are some advantages and disadvantages associated with virtual mediations.  For the next few weeks during the COVID-19 outbreak, if mediations are going to continue, they will be done virtually.  We will each adapt during this period and likely see opportunities to work with virtual mediation after things return to normal.