Since beginning my mediation practice in 2014, I have had the pleasure of assisting a significant number of lawyers and their clients in resolving their disputes with all parties present, either in a reporter’s office or in my law firm’s offices at Minden Gross LLP. Over the last year, of course, all of that has changed as every one of my mediations has taken place virtually, using Zoom.
While there is certainly no reason not to mediate using Zoom, I have observed some differences to which lawyers and their clients might wish to be sensitive. In no particular order, I have come up with the following observations.
- Opening statements have gone from mostly unnecessary to downright dangerous. My normal practice has always been to discourage opening statements. I always conduct a pre-mediation telephone conference with each counsel, separately, to gauge their interest in making opening statements and attempt to persuade them not to do it. As a general rule, they tend to be inflammatory and almost never contribute anything productive to the process.
At least it could be said that when making an opening statement to someone sitting across the table, one is typically on one’s best behavior. As unhelpful as some of these statements have been, lawyers and their clients (who often insist on saying something as well) can usually be counted on to restrain themselves when their opponent is sitting in the room.
On Zoom, all bets are off. Nobody is speaking to anyone across a table. Instead, one is speaking to a face in a little square on a screen. Unfortunately, this seems to result in considerably less self-restraint. As a consequence, people tend to get carried away and allow their emotions to run rampant. I end up starting off the mediation with two strikes against me before I have even come up to bat.
- It is far easier to become distracted. When in person, there is a limit to the amount of activity one can indulge in while sitting in a break-out room waiting for the mediator to return from a caucus with the other side. There is quite literally no limit to things that the client can get involved in during a mediation on Zoom. In my last mediation, one client spent some of his time meeting with his lawyer and me while driving with his phone angled up towards him from its perch on the passenger seat.
Resolving legal disputes is rarely easy. A mediation will generally give a party to its dispute his or her best chance to settle. It is a process that deserves attention and focus. When I act as counsel to a party at a mediation, I always make a point of reminding my client that this is not a time to pick up children from school or take the dog for a walk.
- Exchanging new information can be challenging. As a general rule, I find myself mediating disputes after the exchange of productions and the conduct of discoveries. Usually, this makes good sense since parties are rarely equipped to engage in mediation without having all of the relevant information in hand. However, it is not uncommon for a party to come up with new information in the form of a previously unproduced (and possibly recently discovered) document. In a traditional mediation, a copy of the document can simply be handed to the mediator to be brought into the opponent’s caucus room. On Zoom, this process is significantly more complicated. For clients who are technologically savvy, such documents can be screen-shared with the mediator. The question as to how the mediator transmits that document to the other side may not be quite so simple.
It follows that for a Zoom mediation, it is more important than ever to ensure that all of the documents that may be required for an intelligent and informed negotiation are produced in advance and circulated among all parties.
There is no doubt that Zoom mediations can be just as effective as in-person mediations. As a somewhat evaluative mediator, I often find it necessary to explain to a party exactly what it is that the other side is saying and to offer my own perspective. As my perspective is often not completely aligned with the views of the party with whom I am speaking, some element of advocacy becomes involved in the process. I have found that my effectiveness in conducting this part of the process virtually is no different than in person. In other respects, however, there are differences and Zoom mediations can be more difficult. I have tried to illustrate some of those differences above. Attention paid to these issues, in my view, will invariably contribute towards the success of any mediation.