Making Virtual Mediation A Reality:
A Primer for Women Lawyers of Los Angeles
By WLALA Member Jan Frankel Schau
Ruth Bader Ginsburg, U.S. Supreme Court Justice said: “You can’t have it all at once. Over my lifespan, I think I have had it all. But in different periods of time, things were rough.” In the midst of the Corona virus pandemic, all of us are experiencing those “rough times”; however, there are silver linings. The explosion of virtual dispute resolution may forever change our capabilities of settling our most difficult cases in ways that are convenient for clients and their lawyers who cannot travel to a mediation office on a particular date or to a remote location.
Persuading Your Clients and Opposing Counsel to Proceed with a Virtual mediation:
In every litigated (or pre-litigation) case, there comes an awkward moment when you or your opposing counsel confer about the option of pursuing an “alternative” to the hardscrabble litigation route towards settlement of the case. That typically leads to a conversation about choice of mediation, in some cases arbitration or informal settlement discussions. In turn, that leads to a discussion of optimal timing (before too much has been expended in costs and fees, but after enough discovery has been conducted that both sides are adequately armed to fairly evaluate the case). The parties typically then begin the process of choosing a mediator in whom they have confidence can help achieve an acceptable settlement. Now there is another discussion that will, I predict, present itself in every future mediation: will the mediation be face to face or is virtual mediation preferable.
As I wrote in an article in the Los Angeles Daily Journal on March 27, 2020, “Mediation at ground zero: The case for virtual dispute resolution”, there are many real-life advantages to conducting mediation via Video-Conferencing. Here are just a few:
--The Video Conference platforms provide a safe space. Every participant can access it from their home computer or smartphone without the fear of uncomfortable interaction with their opponent. By utilizing the “breakout rooms” and the “mute” function, the mediator can protect reticent participants from any unpleasant interaction.
--Options like Zoom are easy to get to. There are no travel expenses, fewer time constraints, no traffic excuses, free parking (or as my brother said: “valet” parking) and no risk of exchanging germs.
--Mediation was founded upon a vision known as “the multi-door courthouse”. With videoconferencing, there are no doors (only windows!). This means ultimately that the number of mediations that can be conducted in a single day is not limited by the conference space available.
--Zoom, in particular, is non-hierarchical. Each participant gets the same geographic space on the screen. This allows the mediator to have an honest exchange with your clients in ways that are sometimes less optimal at a face to face mediation.
--VideoConferencing allows for multi-tasking. You won’t have to spend the entire day on the case you are mediating and with that client in a dreary conference space. The mediator will ask you to join her when she returns from the other room and you can reach out to your client at those moments.
--The Zoom platform makes it easy to exchange evidence and documents without printing anything during the mediation. Since everyone is on their personal computers already, the “document share” feature works extremely well.
--Zoom also allows the mediator to create as many “safe spaces” as you desire: a room for each side, a Mediator’s “office”, a “kitchen” or a “lawyer’s only” room. Within those breakout rooms, your oral communication as well as the “chat” function are completely confidential.
--Videoconference-style mediation is remarkably efficient. There is little time for the idle small talk and long waits for the appropriate decision-makers to make decisions. With the extra use of immediate access by phone, there is no need to wait for email responses to pressing questions on issues that may arise throughout the process.
--Like the introduction of video-taped depositions, Zoom gives the parties the opportunity to see the parties, if they wish, and hear their narrative of the claims and defenses if they agree to do so, without waiving the mediation’s evidentiary privileges and without fear of angry responses as may otherwise have the potential of erupting in a live face to face joint session.
--By using techniques employed by those accustomed to being “on camera” or by Professors who conduct “distant learning”, via computer, the mediator can develop a surprisingly genuine rapport and build trust with the participants.
--Most videoconference platforms do not allow anyone to conceal their own distractions. You and your clients will have 100% attention of those you are addresing and your client will have 100% of your attention for as long as you choose.
--In some ways the intimacy of the Zoom experience is better than a face to face one because your mediator can see your client’s surroundings (unless they adjust their settings to make it appear that they are on the beaches of Hawaii or under the Golden Gate Bridge).
--There are “settings” that allow you to improve your personal appearance. Too, you can conduct your mediations in “semi-business” attire. As my daughter-in-law, who is in the fashion business revealed last week in our family Zoom, you can be “business on the top” and sweats on the bottom. No high heels needed.
--Using a videoconference option to mediate is a smart and inexpensive way to flush out whether your pending case is worth pursuing, since all litigated cases will suffer through long continuances after the courts re-open. It is also a productive use of your time while your offices remain shuttered.
Once you have persuaded yourself, your opposing counsel and your client that a virtual mediation is the way to go, your mediator will prepare you with the necessary technical expertise to make this flow smoothly. As in every mediation, that will also give you an opportunity to communicate your specific concerns about whether or not you are willing to engage in a joint meeting between counsel, or with clients, and what documentary evidence will be provided and exchanged in advance of the hearing.
The first virtual ADR experience is the hardest, but I believe that the concept is now here to stay. Over time, when we or our clients have temporary “pauses” in our career, due to family, health or a myriad of other personal issues, it will prove to be an invaluable option. Depending upon how the economy re-emerges, it may also prove to be a great cost-saving measure for struggling businesses who may return with fewer employees and be poorly positioned to sacrifice a senior executive for a full day of mediation at an off-site location.
As the singer, Beyonce said: “Power’s not given to you. You have to take it.” This is the time for us to each take the power of approaching this new normal with confidence and competence so that our clients have every available option to resolve their pending cases in the most efficient and effective ways available.