JAMS ADR Blog by Chris Poole
On the last day I was physically present in the office in March 2020, I completed a multi-party mediation with two parties appearing by Zoom at the last minute due to health concerns. I had no idea how to move people in and out of breakout rooms, so I ended up calling people on their cell phones. We got it done, but it wasn’t easy. A week or so later, and after several days of Zoom training, I conducted a successful mediation from my living room, and I was so thrilled with the experience that I immediately wrote an article about it (Effective Mediation by Videoconference: A Neutral’s Use of Zoom During the Coronavirus (COVID-19) Crisis). After mediating on Zoom for the past 10 (long) months, I have learned a lot and wanted share my thoughts.
- Use pre-mediation calls to prepare for the virtual session: On my initial pre-mediation calls with all parties, I take a few minutes to discuss the virtual platform, assess everyone’s comfort level and address any concerns. If the parties have not mediated virtually before, I will explain how virtual breakout rooms work and that I will be able to move between rooms as I would in an in-person session. I will also discuss with counsel the need to make sure their clients have the instructions and equipment they need to participate in a virtual session.
- Hold a virtual test session with each party: Although most people by now are familiar with Zoom (and other virtual platforms), having individual virtual pre-mediation sessions is still worthwhile. In the event an attorney or client is new to Zoom, the test session can be used to demonstrate moving to and from breakout rooms and screen sharing documents. In some cases, having a client attend a virtual test session can be useful not only to address technical issues, but also to meet the mediator ahead of time. If the attorney is experienced with virtual sessions, the test session can be used to begin establishing a rapport and talking strategically about the case. Making connections over Zoom is harder than in in-person cases and having the opportunity to speak face-to-face ahead of time makes rapport building easier on the mediation day.
- Consider the setup of breakout rooms: In multi-party cases or cases that involve an insurance carrier, it’s worth considering how the breakout rooms will be set up. Should some parties be in the same room? Should the carrier be in the same room as the insured? Because attorneys (and clients) are likely to use any downtime during a virtual mediation to do work, it may affect the room set up. It is easy to create breakout rooms to meet the needs of mediation participants, and this customization can add to everyone’s comfort and the efficiency of the proceeding.
- Use cell phone texting to communicate during the session: During my individual pre-session calls with the parties, I make sure to get a cell phone number for one of the attorneys so I can text him or her during the session. Because the Zoom chat function is used primarily within a breakout room, having an attorney’s phone number allows me to communicate with a party when I am not in the same room. I never want to surprise people by coming into their room unannounced. This separate communication channel helps maintain confidentiality, and having everyone’s cell contacts is also invaluable as a backup in case of unforeseen and uncontrollable blips like power outages and internet service instability.
- Take breaks to collect your thoughts: In an in-person mediation, after an intense caucus with one party, I would often take a slow walk around the office to collect my thoughts before heading to the other conference room. Zoom makes it easy to click quickly to another break out room but having the opportunity to reflect (and walk around a bit) is extremely helpful.
- Keep all parties in the loop during caucuses: If I know that I will be spending a lot of time with one party, I will let the other party know and keep them updated via text. I like to give counsel 10 to 15 minutes to gather their groups before I meet with them.
- Be intentional in communications: Mediating virtually requires that each communication be intentional. I can’t count on running into someone by the water cooler and having a brief conversation. I also don’t have the ability to move between conference rooms without giving parties a heads-up. It is helpful if I speak privately with attorneys before the session so I can ask how they would they like me to work with their clients. If needed, I will ask to speak to an attorney privately during the session by bringing them into my breakout room.
- Allow space for emotions: Just as in in-person mediations, a party may have an unexpected emotional reaction during a session. Sometimes, a party may feel more comfortable being at home when feeling intense emotions. Or it may be harder to be being alone without his or her lawyer in the same room. Whatever the case, I do my best to express empathy over Zoom (even if it feels awkward) and allow the party time and space to address his or her emotional needs.
- Connect with lawyers and clients: One of the upsides of virtual mediations is that no one can sit at the end of the conference room table, far away from everyone else. With all participants in equally sized virtual squares, sometimes parties who may have let his or her lawyer do most of the talking are empowered to play a more active role.
- Have snacks, drinks and lunch ready: I neglected to eat lunch during my first few Zoom mediations since I didn’t want to take time away from the session to prepare food. Having everything ready ahead of time ensures that I will be able to take a break and eat lunch. As mediators and lawyers know, good snacks really help during a long mediation!
Overall, virtual mediation has been a fantastic success and has enabled mediations to continue despite the pandemic. The ability to communicate with attorneys and parties by videoconference when we cannot meet in person has allowed the magic of mediation to continue. That said, I have found that making certain tweaks in my practice and doing extra preparation make the process much more effective.
Robin H. Gise, Esq., is an experienced mediator and arbitrator with JAMS based in New York. She specializes in employment matters, including discrimination claims, wage and hour issues and employment contract disputes. She also handles business/commercial, insurance and public accessibility disputes. She has extensive experience in conducting video and telephonic hearings for both mediations and arbitrations.