We published in SAA 2020-12 (Mar. 25) an article by Mediator Roger M. Deitz advocating that parties consider using telephone mediation as a way to cope with Coronavirus-related delays and disruptions to the dispute resolution process. This week we feature a squib by Mediator Scott Douglas, offering a real-life report on a mediation conducted via a popular videoconferencing platform. The words that follow are his.
As a result of recently imposed virus-related travel restrictions, as well as delays to court and arbitration proceedings, many are inquiring about conducting remote mediations using videoconferencing and other alternative forms of communication. The following is an example of how a recently conducted mediation unfolded from start to finish using Zoom videoconferencing, supplemented by email, text and telephone.
Mediation Day Minus 14
- Email to all counsel attaching Guidelines for using Zoom, with suggestions for preparing their clients, downloading the Zoom App, and pre-testing communications.
- Arrange time on day prior to mediation to hold test videoconference among counsel and any clients they wish to include. Obtain all email or text addresses for purposes of inviting participants to videoconference, and best phone number to reach counsel.
- Send out Zoom invitation to all participants for pre-mediation test videoconference.
Mediation Day Minus 1
- At pre-arranged time, all participants log on to videoconference using link from invite.
- Conduct short meeting to test communications and address any questions or concerns.
- Send out new Zoom invitation to all participants for mediation videoconference.
9:00 a.m.: Initiate Zoom videoconference. Remind parties that the mediation is not being recorded. Conduct joint opening session. Use multiple split screen. Introduce all participants, explain process, opening comments.
9:05 a.m.: Drop all Respondents and defense counsel from group videoconference and conduct opening private caucus with Claimants and their counsel.
10:15 a.m.: Close session with Claimants and invite Respondents and their counsel to join Zoom conference via email. Conduct opening caucus with Respondents.
11:20 a.m.: Conduct brief telephone conference with counsel only before initiating new videoconference with counsel and clients. Provide feedback, evaluation, discuss making opening demand and any non-monetary issues. Sign off and allow time for Claimant group to determine opening demand.
11:45 a.m.: Obtain opening demand from Claimants’ counsel via telephone. Confirm terms in email back to counsel.
11:50 a.m.: Phone call to Respondents’ counsel to discuss opening demand from Claimants. Confirm terms in email to counsel.
Noon: Receive call back from Respondents’ counsel to discuss counter offer and terms. Confirm in email to Respondents’ counsel. Allow time for discussion between counsel and clients.
12:20 p.m.: Email from Respondents’ counsel with formal counter offer and additional terms. Discuss on phone.
12:25 p.m.: Present opening offer via email to Claimants’ counsel and follow up with phone call to discuss. Allow time for private discussion between counsel and clients.
12:35 – 4:25 p.m.: Exchange numerous counter offers/demands by email and phone and clarify additional non-monetary issues and objectives raised by the parties. Utilize variety of negotiating tools to avoid impasse and keep negotiations moving forward.
4:25 p.m.: Reach agreement. Initiate new Zoom videoconference with counsel for both sides to confirm terms of settlement and preparation of written settlement agreement.
4:50 p.m.: Adjourn conference.
Both sets of counsel expressed a great deal of satisfaction with the process. Claimants in this case were located in California, as was the Mediator and Respondents’ counsel. Claimants’ counsel and Respondents’ insurance representative were in New York. All were able to remain at home while participating fully in the mediation. For cases of small to medium value, remote mediations may make a lot of sense even in normal times where travel is unrestricted. As we grow more accustomed to videoconference and effective alternatives to in-person mediations, we might just conclude that for many cases the expense and inconvenience of traveling to remote meeting sites is not justified and would be better spent settling the case.
(ed: *Scott Douglas has been a full-time mediator since 1997, during which time he has successfully mediated more than 3000 cases. Prior to that, he was a partner with the law firm of Keesal, Young & Logan in Long Beach, CA. For more information on Mr. Douglas see his website at www.DouglasMediation.com. **The Alert thanks Mr. Douglas for his contribution. ***For another look at the migration to online ADR, see CPR Takes to the Web As ADR Continues in the Face of the Coronavirus Crisis, published April 2. ****Photo courtesy of www.CourtCall.com. )