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In light of the moratorium on court filings of non-essential matters, practitioners and clients may be considering whether this would be an opportune time to resolve their disputes through mediation. Most attorneys have engaged in face-to-face mediations during their careers, and hence instinctively may be skeptical and even reluctant to engage in video mediations believing that a video mediation is likely not to be as effective as an in-person mediation. We admit that we were one of those skeptics. Indeed, like other practitioners, we believe that there is an inherent benefit in engaging in face-to-face mediations where you have the advantage of observing the nuances in your adversaries’ facial reactions and body language, and also recognize the dynamic of keeping individuals in stuffy conference rooms over long periods of time as a catalyst to settlement. Many practitioners have also raised concerns that a video mediation will negatively impact their ability to interact with their clients confidentially and fear that their clients will be more reluctant to speak freely since they cannot see the reaction of all parties. Then, of course, there is a concern of experiencing technology hurdles such as weak Wi-Fi signal and spotty connections, which, if not resolved timely, can render the mediation session essentially moot. However, during these unprecedented times caused by the COVID-19 pandemic where we are compelled to work remotely due to lockdown or shelter-in-place orders, face-to-face mediations are simply not feasible. So what should lawyers do: avoid mediations as a general rule until face-to-face mediations can be conducted or agree to remotely mediate through Zoom or some other video conferencing medium?

We recently engaged in a video mediation using Zoom in connection with a commercial dispute. The following is an inside look into our experience with video mediation.

As an initial step to getting comfortable with engaging in a video mediation, it is important for the participants in the mediation to do their homework and gain familiarity with the software they will be using (whether it be Zoom, Skype or some other software) in anticipation of the mediation session. Prior to engaging in the video mediation, we watched a webinar sponsored by the New York State Bar Association and given by Simeon Baum, Esq. (“Mediation in the Time of Coronavirus: How to Conduct an Effective Online Mediation - Observations & Tips for Mediators & Representatives”) to familiarize ourselves with the logistics of how a Zoom mediation works and to obtain comfort with the technology. We also asked our client to watch the webinar in anticipation of the mediation. As we normally would in any scheduled in-person mediation, prior to engaging in the video mediation session, we had a pre-mediation call with our mediator and thereafter provided the mediator with mediation statements in anticipation of the mediation.

On the day of the actual video mediation session, the parties first engaged in a joint session, with the mediator later sending each of the parties into separate virtual break-out rooms within the Zoom platform. The break-out rooms allowed us to have confidential communications with the mediator and also with our clients when the mediator left the room. The mediator was able to move in and out of the different break-out rooms to speak with each party separately, while maintaining the option of having the parties congregate in one joint room, if necessary.

Zoom also offers other features that allow the lawyers to communicate confidentially and freely with their clients even when the mediator is in the break-out room. For example, we found the chat function at the bottom of the Zoom toolbar to be a useful tool, which facilitated private communications with one or more of the individuals participating in the mediation. The chat function allows the lawyers to communicate solely with each other (if a partner wants to chat solely with an associate) or with their client without the mediator seeing those chats. There is also a “share screen” function at the bottom of the Zoom toolbar that allows both the mediator and parties to share documents that they deem important to the discussion in real time such that everyone in that break-out room can view the document and provide their input.

We further note that despite popular belief that the parties are unable to gauge body language and the reactions of their adversaries in a video mediation format, we found the opposite to be true. Indeed, when the parties are in the joint session, each participant’s video screen is displayed in a gallery view allowing you to see everyone’s faces and their reactions in real time, and to observe whether anyone is fidgeting, frowning, smiling or disapproving of statements being made. Unlike in a conference room setting where you may only get a side view of certain individual’s faces or where individuals have the ability to look down at their computers or pads, in a Zoom mediation format you will have a direct view of everyone’s faces and their facial expressions are on full display.

Another positive feature of video mediations is that it eliminates time and travel costs and constraints, particularly in situations where the parties would otherwise be required to travel great distances to participate in a face-to-face mediation. We also note that we did not find the clients, lawyers or the mediator to be less engaged in the process because they were participating from the comfort of their own homes. To the contrary, the parties appeared to be focused on the issues at hand, we felt comfortable speaking freely with our clients in the break-out rooms with the understanding that those conversations remained confidential, and moreover, we had the ease of continuing the mediation session on subsequent dates without the usual time constraints involved in scheduling in-person mediations.

All in all, while video mediations are certainly not a fit for every case and should be evaluated on a case-by-case basis, we recommend that practitioners consider it as a viable option during these times. Clients and lawyers alike should not reject engaging in video mediations simply because it is not what they are used to. While there is something to be said for the effectiveness of face-to-face, in person, negotiations, we found the Zoom mediation that we engaged in to be a positive experience and would recommend it to other clients if they are interested in pursuing settlement discussions at this time.

We suspect that at one point in time, practitioners demonstrated a great reluctance to using email over faxes or to e-filing over hard copy filings etc. Change is often hard. However, to survive in difficult environments like the one we are currently facing, lawyers must adapt and be open to trying new technology and alternatives to move their cases and clients’ interests forward. We expect that the practice of law as we know it is going to change in light of the pandemic crisis. Video mediations and video conferencing with courts going forward will likely begin to be considered in each case. Therefore, you can embrace it now, or later. We recommend embracing it now.

For more information on the topic discussed, contact:

• Maryann C. Stallone  |  stallone@thsh.com  |  212-508-6741
• Alyssa C. Goldrich  |  goldrich@thsh.com  |  212-508-7523