In October 2000, I created a presentation for Continuing Education of the Bar entitled "Quelling Fear of Video Mediation." Since then, mediators and participants have become more comfortable and more adept at using video platforms. And we’ve all learned a lot. But some things haven’t changed.
No travel
Perhaps the biggest advantage of video mediation is the elimination of the need to travel. That means not dealing with traffic, which would otherwise frazzle some participants before they even get to the mediation.
It also means that there is no longer any excuse for out-of-towners not to attend. In the past, notwithstanding instructions from the mediator that all necessary personnel must attend, mediation participants would often hear that the person who actually had settlement authority was thousands of miles away.
Has remote mediation eliminated this problem? Not on your life. We still hear it. In fact, books about negotiation counsel that “I can’t agree because I have to check with someone who is not available now” is a good technique. I get that it works when you are at the car dealership without your spouse, but it frustrates the serious intent of participants at a (possibly court-ordered) mediation. It’s also pretty disrespectful of the mediator who spent time preparing, often without compensation for that work.
Remote mediation eliminates the potentially considerable travel expense for those who must fly and stay in a hotel to attend the mediation.
You’re in your own space
Some participants can feel intimidated in a law office or mediation facility conference room. Some of that anxiety decreases when they log in from their own couch or desk.
People are just more comfortable. They can also take breaks to get the food or drink they want without a lot of expense. True story: I once conducted an in-person mediation where a participant did not eat anything that was provided nor was available at a nearby snack bar because the food was not Halal. As a result, as the day wore on, the participant became cranky, and the mediation adjourned without resolution. Food would not have been an issue if the participant had access to his own provisions. (Yeah, I know, the attorney should have foreseen this issue and counseled the person to bring food, but that’s not the way it happened.)
Even in remote mediations, participants should dress appropriately. Judges have complained that lawyers sometimes dress inappropriately. Appropriate clothing includes covering up from the waist down. You might have to stand for some reason or otherwise change your camera’s direction. It’s not that big a deal to put on a pair of trousers. Show respect for the mediation process, including the mediator and other participants.
Zooming in from your own workspace also eliminates the “Oops, I didn’t bring that” issue. While participants can often access left-behind documents stored in the cloud, occasions still arise where something relevant is miles away and not available electronically. Working from your usual chair lets you grab that item.
A huge advantage is that remote participants can profitably use the downtime that inevitably occurs when the mediator is caucusing with other groups.
Scheduling
Even when mediations were conducted in person, it was always more convenient to mediate than to wait for a court hearing. Mediations can happen as soon as all parties are available and don’t have to happen within court hours. Mediation can last as long as needed. Now that there is no need to book a facility, mediation can happen even faster.
Some things stay the same
Mediation was always a way to save time and money. Mediation is confidential and private. Communications made within the mediation, including in anticipation and for follow-up, are not admissible in civil proceedings. Unlike open court, there is no record, so no precedent is created.
The dynamics of mediation allow attorneys to provide insight to the mediator that they could not otherwise convey. Instead of a hallway, now this happens in electronic breakout rooms.
Caucusing facilitates communication among hostile parties. Again, electronic breakout rooms have taken over for physical shuttle diplomacy. Now, the mediator electronically moves between rooms. She can convey information in a way that facilitates settlement rather than inflames passions.
Because nothing binding can happen without the parties’ agreement, mediation promotes a high degree of satisfaction, whether in person or by video.
Technology concerns remain
Don’t be overconfident. Make sure you are skilled in the technology, especially if you haven’t used it in a while. Just because you thoroughly know one platform doesn’t mean you are proficient in every platform. Zoom is not Teams is not RemoteMeeting.
Those of us participating in remote proceedings might be more comfortable now, but what about the clients? Professionals should still spend time educating clients/insureds about what to expect and how to prepare. A practice session is still a good idea for new users.
If the client can’t manage or is intimidated by the technology, consider bringing him into your office even though everyone else is remote. Anyone helping someone use remote mediation technology during mediation, whether in your office or their home, must identify themselves and sign off on the confidentiality agreement.
Technology glitches can still happen. Be prepared for internet or app freezes. Stay calm. Exit and sign back in. Try a different device. Your mediator should be available by phone to help participants use alternate media.
Attorney Teddy Snyder mediates workers' compensation cases throughout California. She can be contacted through snydermediations.com.
Feb 5-7, 2025
February 5, 2025 – February 7, 2025. The Business Insurance World Captive Forum, established in 1 …
Mar 6-7, 2025
The California Division of Workers’ Compensation (DWC) is pleased to announce that registration fo …
Mar 6 – Feb 7, 2025
The 2025 WCRI Issues & Research Conference is a leading workers' compensation forum bringing toget …
No Comments
Log in to post a comment