Articles

VII Crimes of Virtual Mediation

H. Mills Gallivan | FDCC Publication

“The King is dead. Long live the King!” Over the past several years, I have seen, heard and participated in numerous discussions about the rise of online mediation. I have always believed that face to face mediation between litigants is the undisputed King of ADR. Yet I often mused whether I should be looking for a DeLorean with a flux capacitor for a trip back to the future of mediation. Little did I know that a global pandemic would force not just me, but the entire legal profession into the online world of virtual litigation and mediation. As a mediator, one of my favorite rhetorical questions is, “How’s that working out for you?” I now ask myself that question about virtual mediation and would like to share with you some observations about the process, the advantages and the challenges of mediating in a virtual world.

As COVID-19 spread like a wildfire in March of this year the world was turned upside down with sickness, death, economic strife and political upheaval. I extend my deepest sympathies to all who have been impacted by this horrific disease. Let me commend to you fellow FDCC member John Trimbles’s excellent article, “Trimble; Reflection from Quarantine: Moving Remote Experiences”. In the May 13^th edition of The Indiana Lawyer, John eloquently articulates many of the positive professional changes that have resulted from the current crisis.

As the economy was shutting down, the civil justice system began a disruption unlike any in American jurisprudence. The jury trial and our rules of civil procedure were suspended without notice, hearings or public input. We have seen the rise of  Zoom, Webex, Facetime, and video conferences for hearings, depositions, mediations and our basic tools for resolving litigated matters. The South Carolina Supreme Court ordered the use of virtual mediation and provided a method for compelling the attendance of any party reluctant to participate. In the blink of an eye and with the stroke of a pen, virtual mediation is here and most probably here to stay. “The King is dead. Long live the King!”

As we enter this brave new world what lessons have we learned? I submit for your consideration VII Crimes of Virtual Mediation; some are acts of commission but perhaps the most serious are crimes of omission. Each is worthy of more detailed discussion than it will receive in this short article. If you are interested in further dialogue, call me and I will be glad to share with you more of my thoughts and experiences.

So what do we know about this new King and how long he shall live? What are the VII Crimes of Virtual Mediation? Asking for a friend…

I. Hereof fail not to train on the virtual platform.

This brave new virtual mediation world requires new technology and advocacy skills. The FDCC is at the forefront of virtual mediation training. On March 25^th the Federation presented an excellent webinar cohosted by Susan Guthrie and FDCC Past President Jean Lawler, “Mediate Online? What Should I Expect and What Should My Client and I do to Prepare for and Participate in a Successful Mediation?”. A Google search will provide you with numerous articles and training sources for online video conferencing and mediation. The ABA has a number of excellent articles available on its website. I found that training and education are a critical step in the process of making sure my account settings are appropriate for a confidential mediation. Before you go live, I highly recommend setting up several mock mediations with your family or members of your law firm. It is essential that you are comfortable with all of the tools available in your chosen virtual platform. Practice makes perfect!

II. Hereof require a virtual mediation agreement.

A standard mediation and post mediation agreement are not adequate for a virtual mediation. At a minimum the agreement should include consent to virtual mediation, certification that no one is present off camera, a requirement for secure Wi-Fi, prohibition of video or audio recording, and an obligation to identify oneself in the event of an accidental eavesdropping. If you are the mediator, it is very helpful to send the parties a list of pre-mediation guidelines and helpful tips. The mediation agreement should be self-executing with an electronic signature or email acknowledgment. Think about and agree on a method for drafting and executing any post mediation settlement documents. Read the agreements carefully and don’t be shy about requesting modifications that are relevant to the particular mediation and/or virtual setting.

III. Hereof completely prepare your client.

The logistics of virtual mediation require additional client preparation. If your client has never participated in a virtual mediation, I highly recommend a trial run. The camera doesn’t lie and if you or your client are uncomfortable it will show; so get comfortable. If you and your client are in different locations establish an alternate method of communication by phone, text, and/or email. For an optimal experience everyone should have their own camera. However, if two or more participants are in the same room, all but one of the computers will need to be muted to avoid the dreaded feedback echo. In addition to your job as an advocate, you are now the virtual director of your client’s online presence. If you are the mediator, your role as a neutral now includes the job of online traffic controller.

IV. Hereof remember, “Loose lips sink ships.”

The potential for security and confidentiality breaches is significantly increased in the virtual platform and this old adage from WW II is apropos. All of the parties to the mediation must maintain a higher state of security awareness. Potential security breaches can be technological or as simple as a stray person accidentally entering a secure area. As the mediator and online traffic controller, I live by the maxim “trust but verify” because it is better to be safe than sorry.

V. Hereof take advantage of the TV screen.

Never underestimate the power of the TV/Movie screen. We live in a digital society filled with incredible opportunities for powerful advocacy through the use of imagery. Who doesn’t love beautiful cinematography and special effects? So my tips are: dress the part; look like a lawyer; stage a background that exudes professionalism; lighting from the front and side are most flattering; avoid backlighting; set your camera at eye level; pre-check your camera, microphone and speakers; and remember to smile. If you want an Oscar then play your role like Sir Anthony Hopkins or Dame Judy Dench! Lastly, learn to screen share. Defense attorneys who fail to use PowerPoint, the whiteboard in Zoom and exhibits as a part of their mediation advocacy are missing the boat. Ask yourself what would a Bob Christie virtual mediation look like?

VI. Hereof never mistake efficiency for efficacy.

Notwithstanding the somewhat clunky nature of the mediator popping in and out of the breakout rooms, virtual mediations tend to move very quickly. The parties cut to the chase sooner, possibly because they know they aren’t getting a free lunch. Regardless of the reason, the mediator may need to slow down the pace at times. The greatest advantage of virtual mediation is having everyone present for the whole mediation. Historically, insurance representatives often ask to attend face to face mediations by phone. This is highly ineffective because usually after the opening session, they only participate in private conversations with their attorney. In the virtual mediation, the mediator is able to keep them involved in the process, thereby increasing the probability for producing the desired result/efficacy of a settlement.

VII. Hereof be “All In”.

Virtual mediation is here; “Long live the King!”  Will it remain the norm? Probably not, but it has opened our eyes to the use of a very effective tool in the mediator’s arsenal. I foresee a return to face to face mediation which may often include a component of video conferencing for parties who might otherwise be less involved. It behooves mediation advocates to hone their virtual mediation skills and to vigorously apply them to advance their clients’ interests. As a soccer coach I would tell my players, “Go Big or Go Home!” and the same concept applies to this new technology. If you are mediating on a virtual platform, then you and your clients should be “All In” or you are missing your best opportunity to resolve your case in the foreseeable future.

The Verdict

Most mediators, lawyers and clients are embracing both the technology and process of virtual mediation. It has quickly become an effective tool for settling cases and has changed the landscape of alternative dispute resolution. “The King isn’t Dead.” but he is currently in exile. When he returns, hopefully he will find that his loyal and best subjects have prospered in his absence and that none have committed crimes against the state of mediation.