Since the coronavirus pandemic began, to get business done, attorneys and mediators alike have adapted to virtual conferences and virtual remote mediations via Zoom.
While in-person mediations are optimal– a matter of personal preference– here are ten observations on why Zoom mediations succeed:
1. Reduced barriers and shared circumstances. On Zoom, we are in the comforts of home or office. We see how we are each existing. Many experience a shared common bond seeing one another in a living room, home office, or seeing the family cat walk across the screen or hearing the bark of an at-home dog, the sounds of a child in the background, and so on. We all want COVID over. We share in recognizing our human frailty and limits. This humanizes the parties to the mediator and vice versa, and the parties to one another and to the attorneys— at least it often stands to do so. Many are social distancing to the point that human contact is welcome more than when we could go and do more or less anything pre-COVID. With the pandemic, many of us see few people for extended interpersonal exchange. When we do, it can be disarming, even cathartic, in some instances even with the opposition. At home or office, we have access to our preferred foods, choose perhaps more comfortable footwear that does not appear on screen, and have comforts we are used to. This collectively can make burying a hatchet more palatable than at pre-COVID in-person mediations.
2. No jury trials. This is a double-edged sword. Presently, jury trials are few if any, and far between. Some will hold out for time value of money and other strategic reasons and this prevents some settlements. But some, aware of this long wait, choose to settle rather than wait. Parties account for this delay in setting bargaining and expectation endpoints for the negotiation. Some will bargain for finality because of the uncertain time.
3. Higher decision-maker participation. Pre-COVID, often the behind-the-scenes party with decision-making authority would be available by phone. This might be a higher level adjuster, an attorney in a general counsel’s office, or some other executive who is consulted on offer and demand moves. pre-COVID, distance, travel cost, and other office obligations stood in the way of attending the mediation in person. While there was more limited opportunity to communicate with or observe communication with a ‘higher up’ who might be on the other end of an occasional phone call, with a Zoom mediation, that decision-maker is far more accessible. The mediator can gain information from the interaction, words, and body language communicated via Zoom., Direct communication becomes more common than pre-COVID. Some such higher-ups will attend without video, but even then the access makes it easier to gather details and express concepts that can help settle the case.
4. Functionality. Zoom lends itself to a mediation format. Just like actual rooms at a mediation center, parties attend in virtual rooms. A joint session can happen in one such room while breakout rooms keep parties separate. One feature enables any party to alert the mediator to return. The share-screen feature enables communication about a document or other item for review. A lot can be accomplished through one dynamic online format.
5. Red herring reduction. With Zoom, the number of exhibits shown on screen-share to the mediator seems to be lower than in person. It may be the cumbersome nature of screen share results in more essential documents getting the main focus. The amount emailed to the mediator beforehand seems to be the same as pre-COVID, but the time looking at the extraneous appears somewhat reduced on Zoom. This means that focus on key issues is more likely and less diluted by red herrings.
6. Professional preparation just the same. Preparation increases the likelihood of mediation success whether in-person or via Zoom. There is no substitute. This writer’s standard practice is to invite all to send a memorandum and any information deemed important from the date of booking. Mediators should read the memorandum from any party that sends one, then read it again. Preparation for mediation by Zoom or in-person can only help get the job done.
7. Party preparedness for Zoom. While the pandemic is months old now, parties and attorneys are more and more familiar and comfortable with Zoom. Many, by the time mediation rolls around, have had one or more successful Zoom experiences. They come in with a positive often optimistic attitude about the format. The attorney who conveys confidence in Zoom to the unfamiliar client makes success by Zoom that much more likely. This overcomes a hurdle of familiarty that Zoom presented when first coming on the scene as a necessity. A hybrid format is also not uncommon where the attorney and client are in one room instead of on separate terminals in separate locations. Advantages such as the efficiency of communication of at least some being in the same room at an in-person mediation translate to the Zoom mediation as well.
8. Reduced body language information. Some attorneys or parties want to observe the physical manifestations of the opposing counsel or party to the extent that information may be available. Some believe they can read the body language, and some really can do this effectively or otherwise gain confidence that makes them feel more secure about bargaining moves. But, perhaps counterintuitively, less can be more. With fewer nonverbal details, the chances of misperception drop as well. Also, some body language can be offputting whether intended to be so or not. Attorneys interested in this information have or are adapting to watch face, posture and other cues on screen.
9. Self-awareness in the mirror. On Zoom, the parties, attorney, and even the mediator are very most likely not turning off the self-view display. Instead we see ourselves. When watching our own body language and presentation on-screen, we tend to be more measured. This can more-so keep things to business and prevent some communication derailing if not the display of off-putting behavior. This can be especially true during an opening session where parties may communicate with one another.
10. The phone. Not all mediation happens exclusively by Zoom, even in a Zoom world. It’s not uncommon that sidebar discussions can be had (with permission of the client) between attorney and mediator or even three-way or via conference between the attorneys. Functionally on Zoom, an attorney remains in the breakout room– staying with the client– but can physically step away (if in the same actual room) or, if alone, by turning off video and muting. Phone calls can enable sharing of information or discussion that can move the ball forward or telegraph strategy to the mediator or get thorny questions answered. The opportunity for this kind of sidebar is about as advantageous as a momentary conversation in the hallway or another room at the mediation center covering the same sort of topics.
In sum, Zoom in the backdrop of the pandemic offers an engaging communication platform for mediation toward conflict resolution. The proof is in the pudding as well as these mediations online via Zoom, at least for this writer, are settling just like pre-COVID in-person mediations.