Virtual Mediation FAQ
Frequently Asked Questions about Virtual Mediation
Before discussing virtual mediation, it’s best to first talk about mediation in general. Click here for a complete description of what mediation is, and the advantages of using mediation, rather than trial, as the means for resolving civil disputes, regardless of whether they are already in litigation or not.
How do you approach mediation?
Click here for a complete description of my approach to the mediation process.
What is virtual mediation?
Virtual mediation uses modern video and audio technology that replicates in-person mediation, but the participants are not all in the same physical place. Instead, they are connected through computers or other smart devices.
Why use virtual mediation?
Although remote technology has occasionally been used in mediation for many years (e.g., through telephone conference calls, or through some participants in an in-person mediation appearing through videoconferencing), the COVID-19 pandemic and resulting shelter-in-place orders have brought virtual mediation to an entirely new level. Because it is at this point unknown when in-person mediations may lawfully be held, or when participants will feel comfortable enough to hold them in person even when it is lawful to do so, for most situations, and for the foreseeable future, the only way that mediations may be held will be through virtual technology.
In addition, with the exception of certain criminal matters and emergency situations in civil matters, trials have also been put into an indefinite holding pattern. As a result, the only way at this point for civil disputes to be resolved is through mediation. I’ve therefore found that many attorneys and parties who had put mediation “on hold,” hoping that there will soon come a time when we can actually do this in person again, have now come to the conclusion that it’s best not to wait any longer, which in turn means that there is a greater willingness to try out the new, virtual way of mediating.
How does virtual mediation work?
The framework for virtual mediation is basically the same as with an in-person mediation. I always begin the process with initial phone conversations with the lawyers, to explore the issues mentioned here. Additional issues to be covered specifically for virtual mediations include such things as the participants’ comfort level with the technology (and arranging for a practice session with me if needed); making sure that all participants have a computer and webcam, sufficient internet access, and a quiet place to participate from; how we will use the technology to set up separate, confidential Breakout Rooms for each side (see further discussion below); and getting commitments that there will be no one in attendance who is not on camera, and that, even though the “record” function for the Zoom meeting will be disabled, no one will record the mediation using their own means.
Before the day of mediation, I send to all participants, through Zoom, an email through which they “register” for the event using a randomly generated password for security purposes. That then generates a further email, also through Zoom, inviting the participants to the event and providing them a link to simply click on, in order to join the mediation at the appointed time.
Just as with in-person mediations I schedule the participants to join at staggered start times, so that I may spend some time with each side separately at the beginning. Each side initially joins by entering a “Waiting Room,” and I then admit that side into the “Main Room.” From there, just as with in-person mediations, I’m able to place the participants into their own pre-assigned, confidential Breakout Rooms. Just as with an in-person mediation I can move myself back and forth between the Breakout Rooms, and, with everyone’s agreement, I can also place everyone into the Main Room for a joint session. And just as with in-person mediations, the participants can have private, confidential discussions in their own Breakout Rooms, assured that no one can listen in without actually “entering” that room, which is immediately obvious to those already in it. I can also set up a separate Mediator’s Room for private meetings with individual attorneys, or anyone else. And through the use of “Screen Sharing,” we can collectively view exhibits, photographs, or anything else the parties want to share, either with me alone or with the entire group.
And the best part is that, when a deal is struck, we can document it real-time, by using a shared screen to collectively fill in the terms of either my standard Term Sheet or a full-blown Settlement Agreement/Release provided by the attorneys. Once the language is agreed upon, all signatures can then be obtained with a few mouse-clicks via DocuSign, at which point the agreement is final, binding, and, if in litigation, enforceable by motion.
Are there advantages to virtual mediation?
Yes. The most obvious advantage is that geographic distance becomes, except for time zone issues, completely irrelevant. Participants can log in literally from anywhere on the globe, and travel time and expense are eliminated. (This can be particularly important when key decision-makers such as insurance claims adjusters, who are in remote locations, would otherwise not have travelled to the mediation but instead would have participated only by being on “telephone standby.”)
I’ve also found that the parties are more relaxed because they’re in their own environment, which is especially true if they are participating from their homes. Lowering the anxiety level is always conducive to good communication, and in turn to compromise. And in those cases in which it may be important for the claimant to have his or her “day in court,” that is not only still possible (in separate session with just the mediator, or, if all parties agree, in a joint session), but the greater informality of the virtual process can serve to “keep the temperature down” during that process, while still allowing the claimant to be “heard.”
Are there disadvantages to virtual mediation?
The main disadvantage of virtual mediation is the loss of the in-person connection between the mediator and the participants, and among the participants themselves. One of the key benefits of that in-person connection is to allow the mediator to pick up visual cues through “body language” and gestures, in addition to verbal cues through not only the words used, but how they’re said. (On the other hand, I’ve found that in some ways the ability to focus on the participants on camera can actually enhance the mediator’s ability to pick up on unspoken cues.)
Other disadvantages are primarily technology-based: it’s difficult to look someone “in the eye” when you’re speaking to an image on the screen that isn’t directly in line with your webcam; some participants may have “technology anxiety” that can interfere with the decision-making process; and there is always the possibility that technical issues (such as someone losing internet connection) might arise. That said, all of these potential problems can be addressed through proper, pre-mediation preparation, and by putting a back-up plan in place in the event something goes wrong.
Is virtual mediation secure?
Zoom is a third-party vendor to DIAMOND DISPUTE RESOLUTION, and as such we have no input into, or involvement with, Zoom’s security policies. That said, Zoom is one of the most, if not the most, frequently used providers for alternative dispute resolution, and we are trained in best security practices using the Zoom technology. By way of example, no one may enter a Zoom mediation with DIAMOND DISPUTE RESOLUTION without first having registered and received a randomly generated password for the meeting. For more information, please visit https://zoom.us/security.
Does virtual mediation work?
Absolutely. Virtual mediation is becoming more and more accepted, and disputes are getting settled just as they were before.
What if the attorneys, or the parties, aren’t familiar with the technology?
No problem. I’m happy to walk attorneys, and their clients, through a “trial run” of the technology well before the mediation happens, so that on the day of the event they can focus on the process and not on the technology.
Is there any additional cost for virtual mediation?
There is no additional cost for virtual mediation. The participants do not need to have their own Zoom or DocuSign accounts; I provide those platforms to the parties for their use, free of charge.
How do we get the process started?
Click here to contact me for further information and to begin the process.