As I write this, my first post-Covid, full, in-person mediation is in the rearview mirror. Nonetheless, Zoom mediations will no doubt dominate for some time, and I suspect that a hybrid form of mediation – part live and part virtual – is here for the long term.
Having now lost count of the number of cases I have mediated via Zoom, I look forward to the gradual return of the more traditional mediation format. I still believe that the communal, physical, and interpersonal aspects of live, in-person mediations, are the most effective.
Before the forced trend toward Zoom mediations, mediation was fast becoming a, if not the, watershed event in litigation. As litigators, we know that about 98% of our cases will settle, and trial has long been the exception, not the rule. As such, when handling civil litigation, we often sit astride two horses: 1) defending or prosecuting our case with the possibility of trial always on our minds, while 2) preparing our case so that it is well-postured/positioned for settlement. While the former requires pretty much a “no stone left unturned” approach, the latter calls for something less, in the form of having acquired the critical mass of information needed to evaluate the case and make informed settlement decisions.
As we have navigated the pandemic and taken on increasing workloads at home, many of us, your humble author included, have seen our homes and work lives begin to seamlessly intermingle. When I look forward to my weekends as a time when I can [finally] get more work done without interruptions, there is something seriously wrong with this picture. I suspect I am not alone in this perspective. As our homes morph into our workspace and back again, something is lost in the transition, and this can have a direct impact on our Zoom mediation – its impact and effectiveness. In sum, if we don’t attend to the formalities of a mediation, we risk it becoming a formality.
I have stressed in other comments the critical role that a mediation often serves as a “day in court.” This is particularly true for the uninitiated plaintiff, who is likely new to the process and may have only this single opportunity to be heard and to meet, and perhaps confront, the defendants. Despite the fact that a mediator has no authority to bind, the parties nonetheless look to the mediator as an individual clothed in authority and neutrality.
There is a decided formality to setting a mediation date, submitting mediation statements, arriving at the designated office, meeting the mediator, engaging in openings (still my preferred start), proceeding through the series of caucuses that comprise the bulk of the mediation, and, yes, even waiting out responses from the other room. This investment in time and planning creates expectations for the mediation itself, which is an event. I believe these formalities dignify, validate, and elevate the live mediation process.
As such, efforts to transfer these formalities to our Zoom mediations similarly enhances and elevates this process. Contrastingly, a bunch of us sitting around in short sleeves and shorts from our living rooms and kitchens is not an auspicious beginning. So, despite temptation for an easygoing Zoom session in our shirtsleeves, here are some thoughts on some totally optional formalities:
Avoid “Just” and “Only”
It may be tempting to underplay the mediation and describe it to a client as “just” or “only” a Zoom mediation. Avoid this. Don’t enter into the process having already undermined it.
Prepare Your Client
Give your client the same level of preparation as you would for a live mediation or court appearance. Let it sink in before mediation that something special is about to happen. Remember, this is also your chance to shine. When I sit in a mediation and observe counsel, I always appraise them as an advocate. Preparation and polish at a mediation translates to dollars. Don’t throw money away.
To the Mediator; Attend the Mediation from your Office, if Possible
In the early going, I conducted my share of Zoom mediation from home. I now uniformly conduct them from my office, and in a jacket and tie. This sets a tone for all.
To Counsel, the Same
As we return to some normalcy, I encourage counsel to do likewise. Attend the mediation from your office – or at least, from a home office, and dress the part.
Consider Bringing Your Client to Your Office
We are now morphing into a bit of a hybrid. Counsel can prepare the client at his/her office and then attend from one or more workstations. Obviously, health concerns trump all, but at least consider this.
Keep the Cameras On
It is easy to “depart” the mediation and attend to other business while keeping an ear on things. This should be the exception. Take advantage of the opportunity to confer privately with your team when the mediator departs your caucus. When engaged in a joint session or in caucus with mediator, use your camera, and keep up the virtual eye contact. It sends a message that you are engaged, and this is a priority.
In Closing
I have no doubt that many Zoom mediation succeed without a hint of any of the formalities I suggest above, and there is much more to a successful mediation than keeping up appearances. Nonetheless, my own experience, as well as mediation “war stories” from others, suggests that elevating the proceedings as suggested above can have a very real impact on the potential for success. When we invest in something, it is in our nature to want to profit from it.
Til next time,
July 2021
FPA
