A Dozen Tips for Zoom Mediations

Wed, Jul 29th, 2020 | by Miles Mediation and Arbitration | Article, News | Social Share

By Ken Shigley

In the surreal time of the COVID-19 pandemic, with social distancing, face masks everywhere, the courts barely functioning under judicial emergency orders, and many lawyers and clients trying to work from home, dispute resolution has gone online. The dominant technology used is Zoom teleconferencing.   

Once you become comfortable with the technology, Zoom mediation is very much like face to face mediation, but without a lunch buffet. Everything you have learned about negotiation and mediation applies in the video conferencing environment once you become comfortable with the technology.  

Learning such new tricks is an ethical obligation for competent representation. Rules of Professional Conduct Rule 1.1, Comment 6, pending before the Georgia Supreme Court, states: “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology . . . .” A year ago, lawyers did not need to master videoconference technology to represent clients in litigation competently, but now we must. 

Twenty years ago, I was ahead of my time when, with the late Ed Henning, I worked on an idea for a nascent online mediation company.  As the broadband infrastructure for widely distributed video conferencing did not yet exist, that idea did not get off the ground. Now we have the broadband infrastructure for videoconferencing, and Covid-19 has made a virtue of necessity.  

Here are a dozen tips for working in the “new normal” to resolve cases through Zoom mediations in addition to all the other principles and skills involved in face to face mediation. 

1. Hold preliminary Zoom conferences between the mediator and attorneys. 

Good mediators have long made a habit of calling the lawyers before the day of the mediation for a preview of the issues, parties, negotiation history, and obstacles to settlement. That preparation call gains new scope and importance with Zoom mediation. 

a. Timing.  Because everyone is at a different point in the learning curve for the use of the Zoom, the preliminary call should be a week or two before the date of the mediation and should be done through Zoom to assure comfort with the technology.  

b. Scope. The preliminary call should address the substance of the case and obstacles to settlement.  

c. Zoom settings. Discuss the number of breakout rooms and other Zoom conference settings. 

d. Identify necessary non-party stakeholders and influencers who should be available by phone or by Zoom, execution of the agreement to mediate with DocuSign, and how to make sure clients have the equipment and training to use Zoom comfortably. 

Gather email addresses and cell phone numbers to facilitate Zoom conference invitations and sidebar communications.  

2. Attorneys must equip and train clients to use Zoom. 

Many personal injury plaintiffs may not have used Zoom and may not have adequate equipment and connectivity to make it work well. If a client attempts to participate in a lengthy mediation on a cell phone, it probably will fail. Moreover, even on a PC, audio and video quality suffers from an unstable wifi connection.  

As part of competent advocacy, the plaintiff’s attorney should take responsibility for assuring that the technology works adequately. An entry–level tablet sufficient for Zoom conferencing can be purchased online for $50 or less, which the attorney may treat as a case expense. Built–in webcams and microphones are often adequate, but one must assume nothing. If the client has a more tech-savvy family member who can assist in the tech setup, get that person involved. 

Test the equipment and connectivity well in advance. Generally, a hard-wired connection is more stable than a wifi connection, so unless the client is proficient with technology, the law firm should do whatever is required to make that possible.  

Most clients who do not use Zoom and DocuSign in their jobs require training and practice to become comfortable with the Zoom videoconference environment.  In addition to orienting the client to the mediation process and the technology, lawyers should work with clients to assure a plain, uncluttered background and proper lighting in front of them rather than backlighting them in silhouette.

There are excellent online resources useful for such training. See, e.g., 

 https://www.milesmediation.com/videos/how-to-conduct-virtual-mediations/  

https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials; 

https://www.youtube.com/watch?v=QOUwumKCW7M; 

https://www.youtube.com/watch?v=FnFSBjFvK2o; 

https://www.youtube.com/watch?v=bTSJ0YDoF7o 

In preparing clients for Zoom mediation, the lawyer should stress the need for a quiet, private setting, free from the distractions of pets, children, other family members, TV, music, etc. The worst I have heard of was a woman attempting to participate on her phone while driving with children and pets in the back seat of her car, who then was pulled over by police during the Zoom conference. She clearly did not understand the process. 

3. Practice sessions with the mediator, lawyers, and clients.  

Everyone encounters glitches the first time or two using Zoom. A day or two before the mediation, it is useful to have a brief Zoom practice session between the mediator and the lawyers and clients on each side. Introduce them to their Zoom breakout rooms. That can help build rapport while working out any technical glitches. At this time, exchange cell phone numbers so that in addition to the Zoom chat feature, the mediator and lawyers can privately message each other, and the lawyers can privately message their clients when necessary. 

4. Execute documents electronically.  

Use software such as DocuSign to execute the Agreement to Mediate, including a confidentiality agreement. Any non-party participant, such as a non-party family member, claims professional, financial consultant, or structured settlement broker, should also sign assuring confidentiality.  

When the parties agree to a settlement, the mediator should have a standard Settlement Agreement form ready to fill in and circulate to the parties and attorneys for electronic execution. Clients can use execute documents without charge through DocuSign. https://www.docusign.com/esignature/sign-documents-free/  

5. Zoom settings. 

The mediator must be familiar with optimal Zoom settings. These include: 

a. Security. Set up the Zoom conference to require a password, set up a waiting room, and lock the conference once everyone has logged on. 

b. Screen share. Enable screen share for all participants so that they may share documents, photos, PowerPoint presentations, etc. 

c. No recording. Zoom allows recording of conferences. In selecting settings, the mediator must turn off that feature.

d. Breakout rooms. The mediator should manually set up multiple breakout rooms: for each party and attorney combination, for each potential combination of lawyers only, for “hallway conversations” with each lawyer, etc. If a non-party such as a structured settlement consultant may participate at some point, an appropriate breakout room should be configured to enable such access.  

6. Visual presentation. 

A lawyer who wants to use PowerPoint, exhibits, or other visual aids should save those in PDF format in a separate folder for the mediation, and practice using them with Zoom Screen Share before the day of the mediation.  

7. Dress appropriately. 

Parties to a lawsuit often want their “day in court,” even in the informal and non-binding context of a mediation. They want to feel that someone in authority listened to their painful story and showed the respect they deserve. Mediators and lawyers must not forget this emotional need in conducting a Zoom mediation. The professionals should, therefore, look the part.  

While working at home during the pandemic, many professionals have relaxed their standards of professional appearance. One Florida court admonished male attorney appeared shirtless during a Zoom hearing, while a female lawyer was on camera while in bed “still under the covers.”  Mediation is not the time for such casual attire. 

In a Zoom mediation, the mediator should dress like an authority figure, perhaps in dark suit and conservative tie. Lawyers should dress for a Zoom mediation as they would for a face to face mediation.  

8. Backgrounds. 

To enhance the sense of giving parties their “day in court” the mediator and lawyers should carefully consider the backgrounds for their appearances on Zoom. A plain, uncluttered office or conference room background may be fine. A home playroom cluttered with kids’ toys is not appropriate. One may consider the use of appropriately dignified virtual backgrounds, which the lawyer may upload to Zoom. However, the tendency of the person in the foreground to electronically melt into the virtual background can be distracting.  

9. Erasing geographical barriers. 

In face to face mediation, the pressures of logistics can have both positive and negative effects, none of which exist in Zoom mediations. With no travel required, it is relatively easy to have distant parties and claims professionals attend mediation through Zoom. The time pressure imposed by a claims professionals flight time at the end of the day is no longer a factor. At the same time, the tactic of packing up and threatening to leave loses much of its impact when everyone is attending virtually.   

10. Ease of recessing and reconvening. 

In face to face mediation, the lack of needed documentation or settlement authority becomes a problem if it requires leaving and coming back another day. Due to logistical concerns, that can inject a long delay or completely derail a mediation. When the mediation is through video conference, it is relatively easy to reconvene through Zoom whenever everyone has a clear hour or two on their calendars.  

11. Recognize the other effects of the pandemic.  

COVID-19 has disrupted court operations nationwide and delayed jury trials indefinitely. On the other hand, the psychological effect on jurors when we emerge from this historical crisis is unpredictable.  Parties negotiating the settlement of cases in this surreal time must take into account those disruptive factors. 

12. Closing the deal. 

As in face to face mediation, when the parties agree to a settlement agreement, the mediator fills out a Settlement Agreement form, goes over it with the attorneys, gets everyone to sign, and thank all participants for working well together. It is much the same in Zoom mediations except that the document is prepared, circulated, and executed electronically with a program such as DocuSign.  

While the COVID-19 pandemic may recede into history when a safe, effective vaccine becomes widely available, online dispute mediation is likely here to stay. Lawyers and mediators must adapt to it to survive and prosper professionally.  

ABOUT KEN SHIGLEY

As a mediator and arbitrator at Miles, Ken Shigley offers clients extensive experience in both plaintiff and defense practice. He has mediated hundreds of cases and is a former member of the Georgia Dispute Resolution Commission.