By Bruce Nye, www.BruceNyeMediation.com
During this current era, in many parts of California (and in many parts of the United States) arranging court appearances, live discovery, group meetings and mediations ranges from difficult to impossible. Many courts have used telephone participation or website appearance programs for the parties’ appearances. Some attorneys have used Zoom or a few other video services for depositions. And some mediators have been using Zoom or other video services to lead mediations.
I am happy to state that three times in two weeks I have successfully used BlueJeans.com to lead mediations that resulted in settlements. This helped to continue my success rate in mediations to above 80%, and as a guy to whom statistics are essential, that is great news to me. Here is what I have learned:
- It is still important to have pre-mediation conferences separately with each side before the mediation itself. This provides an essential opportunity to make sure that both the lawyers and their clients get a chance to meet the mediator and gain a full understanding of the process before it takes place. Before the pandemic crisis, when mediations were all conducted live and face-to-face, we often conducted the pre-mediation meetings by conference call. We can still do that, but it sometimes works to conduct them by Zoom or another type of remote video. It is absolutely best to have the parties present for the pre-mediation conference, and not just the lawyers, so that the parties have a full understanding in advance. Also, this is a good time for the mediator to get a commitment when possible that the individuals attending will be those with full settlement authority.
- When, as is currently the case, the mediation is conducted by remote video, the pre-mediation meetings are even more important. It will normally be my practice to first send a letter to the parties explaining the remote on-line process and how they should connect once they receive the link I will send them by e-mail. A part of the pre-mediation conference that is unique to the current situation involves teaching the parties and lawyers the technical aspects of participating in the mediation. For this, a conference call may be better than a Zoom meeting.
- It is not uncommon for mediations to take place when a party’s principle with full authority is not present. While the mediator will always prefer having the decision-makers present, the mediator will understand that the in lawsuit world because of distance away, schedule, or other matters, sometimes not everyone will be able to attend. In those instances, it is not unusual to speak with decision-makers by telephone during the process. However, during the Shelter in Place Era, with nobody attending the mediation live and in person, Zoom or another remote video program makes it easier for all parties and their decision-makers to attend. Recently, I have successfully helped settle a case where a primary decision-maker attended via remote video from across the country.
- There are typically two meeting elements of mediations: Joint mediation meetings, and separate caucuses. Under California State laws, all information exchanged during the joint meeting is confidential, meaning that mediation communications made may not be offered in evidence at trial. And by terms of the Agreement to Mediate that the parties and their attorneys sign, communications by a party during the caucus is also confidential, meaning that it cannot be communicated to the other side, or to anyone, without the permission of the party in the caucus. Remote video programs work very well for both. They are, of course, set up to allow everyone to be present on line and on either their cell phones or computer monitors for the joint programs. Most of them also permit establishing “breakout rooms,” meaning electronic online rooms to which individuals can only participate if I invite them. These work perfectly for the mediation caucuses, ensuring participation and confidentiality.
- Finally, so far the remote video mediation process has been very effective. The parties just about always seem comfortable speaking to all participants in the joint sessions, and talking to the mediator during the caucuses. We all look forward to the complete end of the Covid-19 pandemic and the Shelter in Place requirements. When they end, I suspect that some attorneys and parties will want to continue with the remote video approach. If that is possible and desirable, I will continue to make that available. My best bet is it will be both.
