Effective Virtual Mediation in a COVID-19 World

Here are some useful “Tips” and “Tidbits” for conducting an effective virtual mediation:

Preparation

Prepare and deliver mediation materials (electronically) well in advance of the virtual mediation, in the same fashion as you would for an in-person mediation. Ensure that you include all expert reports that support your case, and address any information requests that have been made by other parties (so there are no “information” issues). If you want to deliver a Powerpoint or video presentation, many virtual mediation platforms (such as Zoom) have the capability to facilitate those presentations through a “share screen” feature.

Get Comfortable with the Platform

If you are acting for a non-institutional client (i.e., a plaintiff) or are unfamiliar with the virtual mediation process or technology, arrange a pre-mediation call (or even a “dry-run” session) with your client and/or the mediator to help establish familiarity and comfort with the process and technology, as well as rapport with the mediator.

Ensure Confidentiality

Ensure that confidentiality and privilege can be maintained throughout the process. Make sure the mediator can “lock” the virtual meeting to ensure that only known/approved participants are involved. Have all parties agree that there will be no recording of any part of the session by anyone. Avoid using the “chat” function available on most virtual platforms for communication with other parties, as it may not be private. You may wish to consider using e-mail, text messaging or cell phone calls for sensitive conversations. Confirm that private virtual private break-out (caucus) rooms are available, and reach agreement in advance with the mediator on a “notification” process to be used before they enter your break-out room (typically, there is an on-screen “help” button within each break-out room which can be used to signal the mediator that it is okay to enter).

Different Yet Familiar Process

The virtual mediation process itself is actually surprisingly similar to an in-person mediation. Usually, there is an initial “joint” opening session, following which the mediator will place the parties (with their counsel) into separate virtual break-out (caucus) rooms, and then commence “shuttling” back and forth between those caucus rooms in the same fashion as at an in-person mediation, except virtually of course. The mediator also has the ability to bring the parties back into a “joint” session, or the flexibility to arrange additional virtual meetings, between different parties, or their counsel, if desired, either by bringing one party into another parties’ caucus room, or creating an additional break-out room for the parties, or perhaps their counsel only, to meet separately, with or without the mediator.

Be Professional

The “self-isolated” Covid-19 lifestyle often becomes a very “casual” one, both in terms of dress and overall presentation. Resist those tendencies when mediating virtually. Dress as you would if attending an in-person mediation. Speak, and act, professionally. Show you take the process seriously, and you will be taken seriously.

Have a Schedule

The virtual mediation process may seem to progress faster, because there is often less of the traditional “downtime” that occurs in a “physical” space, associated with such things as kibbitzing, smoke and bathroom breaks, etc. However, because there are no “visual” cues as to the movements of people in a “virtual” space, it is important for everyone to communicate to the mediator if they are going to be “away” from their caucus rooms for any extended period. As well, to avoid any lengthy or unanticipated interruptions in the mediation process, the parties are well advised to agree, at the outset of the mediation, on a schedule, which includes set times for regular breaks (and their length).

Final Thoughts

Although “in-person” mediations, where the subtle nuances of human communication in all its forms are far better discerned, remain the preferred format for mediations (certainly by mediators), the virtual mediation process may be a reasonable alternative, in these unusual times, to resolving your client’s disputes in a timely way.