By R. Cooper Shattuck and H. Harold Stephens
The Covid-19 pandemic has had a profound impact on virtually everyone, and lawyers are no different. Mediation is just one of the areas in which our practices have been significantly affected. While some of the Covid-19 consequences were temporary, the ability to gather virtually or remotely is here to stay. Dorothy was right: “We’re not in Kansas anymore!”
We can debate whether it should be, but the reality is Zoom and the like are now a part of our lives. If you have not already done so, you or your client are likely going to participate in a virtual mediation soon.
This article is written by mediators for mediators and for lawyers to offer guidance in conducting and participating in an online mediation. The authors recognize that not every case nor every participant is suitable for virtual mediation; some mediations need to be done in person and sometimes you just have to be there. But, if you are planning or participating in a mediation online, we hope you will find the following tips and information helpful.
The Setting and the Technology
The amount of time and energy that lawyers spend on their offices (décor, furniture, art, etc.) varies widely. While we have the luxury of devoting substantial resources and attention to our physical setting, the same may not be true of our virtual presence. If we are to be effective virtually, then we must devote time, energy, and attention to our virtual setting and its technology demands.
The camera on your laptop or built in to your monitor should be fine if it was manufactured in the last few years. If it is any older, you may not be well-presented on any virtual platform. Adding a new camera with greater capabilities and, thus, a higher quality picture is easy and inexpensive. It does not take an advanced engineering degree to install a new camera. Most are “plug and play” – you simply plug them into a USB port and your computer does the rest. Test your camera well in advance of the mediation.
Your microphone will have a large impact on how you sound and whether there are noticeable gaps between when you start talking and when everyone else hears you. Be sure to check your volume prior to the mediation; you don’t want to be so soft as to sound like the Cowardly Lion. If you are using a built-in microphone, you may need to prep your surroundings to enhance its capabilities. A cavernous setting or one with lots of hard surfaces creates an echo effect which quickly grows tiresome to listeners. Adding (off camera) pillows, rugs, blankets, and other soft goods will help absorb those echoes and greatly improve your sound.
A separate microphone is helpful as well. Like cameras and lights, they are widely available and relatively inexpensive. Make sure that you know your microphone’s sweet spot and position yourself accordingly. It also may be helpful to wear ear buds or headphones when participating in virtual mediations. Not only do you hear better, but your microphone does not pick up extraneous noises from the virtual meeting, which adds to frustrating delays and disjointed conversations. Worse, a bad microphone in a cavernous and echo-prone setting using a computer’s external speakers can result in feedback – the virtual equivalent of nails dragged down a chalkboard. Some headsets have built-in microphones which may be a good alternative as well. Test your microphone well in advance of the mediation.
Regardless of the quality of your camera, if your lighting is inadequate, your image will suffer. You must be well-lit. Your background need not be. There are many supplemental lights that can be purchased rather inexpensively for just this purpose. You can also use a lamp without a shade but be careful of throwing distracting shadows or unwanted glare. You do not want to appear as the Tin Man. A light filter or a piece of wax paper may soften an exposed bulb enough to work. Make sure that your supplemental light source hits you straight on or a little higher than your face from relatively the same angle as your camera. You should be lighter than your background.
Once you have the right equipment and the proper setting, you must next consider what people will see when you appear. Optimally, your camera should be straight in front of you and at eye level or a little higher. That is the most flattering and least distracting viewing angle. But they are not just seeing you. Think about your background. Virtual backgrounds are an option with most video conference platforms, but they grow tedious after a little while. Your background should be pleasant, not too busy, and certainly not distracting. Anything in motion around you can be a distraction. You should be in the center of the screen taking up about half of it, and the other one-quarter should be divided to either side of you. If you have books or art behind you, make sure that the titles or subject matter do not convey any unwanted themes or notions or cause distractions. You should not have a window which allows light to enter making your background lighter than you. Obviously, unmade beds, dirty dishes, laundry, and other messes should be avoided. Likewise, there are lots of law firms with beautiful conference rooms with video capabilities installed. Unfortunately, these rarely provide a close enough view of the participants to be helpful in a mediation. If you are not able to easily tell exactly who is speaking, then that person needs to sit closer to the camera.
Your internet connection and speed are critical. Hard wires are generally better than blue tooth or wireless connections, but they are not required. Generally, all participants – mediators, lawyers, and parties – should be sure in advance of the mediation that they have a stable and secure internet connection. Be aware that the hotel wi-fi or your local Starbucks are not secure connections. You are not the Scarecrow; use your brain to ensure you have a good connection in advance of the mediation.
Potential Distractions and Interruptions
Invariably, your neighbor will crank up his leaf blower or chainsaw in the middle of your mediation. Though you cannot control everything that could impact your mediation, manage those potential interruptions that you can prevent. Interruptions by pets (such as Toto), children, spouses, the dishwasher, or the Roomba vacuum cleaner are more likely controllable or preventable than your neighbor. While most certainly understand that you cannot prevent every potential distraction, what is cute during your Zoom Happy Hour communicates the wrong tone during a mediation. An ounce of prevention saves a pound of embarrassment.
While there are many different virtual video conferences out there, Zoom seems to be the most commonly used right now. Apps are available for using Zoom on desktops, laptops, tablets, or smartphones at https://zoom.us/download. For mediators, you will want to choose the Pro version of Zoom. This version is well worth the nominal cost and, unlike the free version, will not automatically end in 40 minutes. Whether you are a party or the mediator, becoming familiar with Zoom’s functions, options, and limitations before the mediation session (or refamiliarizing yourself with them) is critical to conveying a professional image. There are some useful video tutorials and how-to guides available on Zoom’s website.
If you are representing a party to a mediation, review Zoom with your client representatives ahead of time. Do not just ask if they are familiar – make sure that they are. You might consider having a preparation meeting with them virtually via Zoom to practice.
TIPS FOR THE MEDIATOR
Hosting a Zoom mediation is much different than simply participating in one. As with the other elements of the mediation, you are in charge of the process, including the virtual parts. As the mediator, you should be the host. You are the Wizard (and not just in appearance only). That means you control the participants, whether they can speak, whether they can share a screen, where they are located, and who is with them.
Prior to the Mediation
Get everyone’s name and cell phone number in advance. If there is some technical issue or someone gets disconnected during the mediation, the easiest and quickest way to get in touch with them is to call them directly or text them. Everyone should have their cell phones readily available should that occur.
The Zoom Invitation
Send the invitation to all participants as soon as the mediation has been scheduled. Also consider sending a reminder two or three days prior to the mediation.
Pre-mediation Conference with the Attorneys
As part of your standard operating procedure, you should have a pre-mediation conference with the attorneys. This is a great time to learn the facts and issues at play in the mediation, and it also helps ensure that the attorneys and their clients are prepared to negotiate at the outset.
In the Land of Zoom, a pre-mediation conference several days in advance of the mediation can be quite useful. You can accomplish a number of helpful items, such as determining whether the attorney is well-versed in using Zoom and whether you are comfortable doing so. You can also discuss who is going to be present at the virtual mediation. Will you have everyone you need present by Zoom? Will some participate only by telephone?
Remember, Rule 10 of the Alabama Civil Court Mediation Rules ensures that mediations are private. An alleged victim of domestic or family violence may have in attendance at mediation a supportive person of their choice. In all other cases, persons other than the parties and their representative may attend mediation sessions only with the permission of the parties and with the consent of the mediator. The Zoom pre-mediation conference is a great opportunity to be sure that you and the attorneys are comfortable with the participants and the process. Finally, this is an ideal time to discuss with counsel whether any prior settlement negotiations have occurred and if there are any obstacles along the Yellow Brick Road.
The Waiting Room
Under your account Settings, enable Waiting Room. This means that everyone who attempts to join the meeting will have to be admitted by you as the host. This keeps everyone from popping in at once. Think of it as having a receptionist who shows them to their individual caucus conference room after they arrive at your office. But remember, they are not yet in their Zoom caucus rooms (that is explained in the next section). By using the Waiting Room, you will have to grant permission for each individual to enter the mediation. Persons can enter one party at a time and then be moved to their respective caucus room. If you want to have a joint session with everyone at the beginning of the mediation, you can do so while everyone is initially in the Waiting Room or later by moving each participant back to the Waiting Room in a controlled fashion.
You also need to enable Breakout Rooms. That feature is located in your Settings under In Meeting (Advanced). Think of these Breakout Rooms as your individual caucus/conference rooms. You can and should create these ahead of time and name them (so there is no confusion as to who is where). Do not get cute with the room names, as participants can see them when they are invited to join them. Simple and straightforward names (“Plaintiff Smith’s Room” or “Defendant Jones’s Room”) are fine. It is a good idea to create an extra caucus room in case you need to meet with some other combination of folks (such as just the attorneys). The participants cannot see all the different Breakout Rooms nor can they move from one to another. You control who is where and when. If someone disconnects, they will have to call again and you will have to go through the process of admitting them into the Waiting Room and allowing them to re-join their Breakout Room. As the host, you will be able to freely and easily move between each of the breakout rooms just as you would between conference rooms.
While you are in your Settings in Zoom, you should also disable the ability to record the meeting. Go to the recording tab under your Settings. Disable Local Recording and Cloud Recording and Automatic Recording. Under Rule 12 of the Alabama Civil Court Mediation Rules, recordings of mediation sessions are not allowed.
In Settings under Meetings, you can enable or disable Screen Sharing. You should know if you need this after your initial phone conference with the attorneys. Regardless, it is probably acceptable to enable Screen Sharing for All Participants. Even if it was not anticipated in advance, someone can share their screen without making them a host. You do not want to allow a party to be a host or co-host.
Zoom has a Chat feature which allows participants to send text messages to each other through the program while on a conference. Unless the lawyers and parties are frequent and sophisticated users, it is likely best to disable this function. While handy, it is also easy to chat with unintended recipients. Because you are in charge of the mediation process as the mediator (and responsible for ensuring confidentiality), it is a good idea to protect participants from making such a mistake.
During the Mediation
During the actual mediation, there are a few things to keep in mind in managing the process. Be aware in a joint session that you have the power to mute a participant. Do not be afraid to do so if someone is getting out of hand. Again, be sure that everyone (parties included) has your cell phone number as well so that they can reach you in the event that they become disconnected. And be sure that you have theirs so that you recognize their number if they call you. Explain to the parties that you cannot actually move them. They have to accept your invitation to move to a Breakout Room, for example. You cannot just move them there. You also should ask who is in the actual room where the participants are located (outside of camera range) because you are responsible for confidentiality and privacy.
TIPS FOR LAWYERS AND PARTIES
If you are going to share your screen during a mediation, practice in advance. Know exactly what you are going to share, have it ready, and know what it is going to look like. You can share your entire screen or simply one particular window (one program).
Controlling the View
It is best generally to use Gallery View. This enables you to see everyone in the room regardless of whether they are speaking. Make eye contact with your camera just as you would make eye contact with individuals when you are speaking to them.
Keep your microphone muted when you are not speaking, as this helps the sound performance for everyone participating. If two participants are located in the same room, if one fails to mute when the other is talking, feedback can be a problem. Try not to speak when someone else is speaking. Doing so creates awkward moments of interruption and/or silence.
Realize and appreciate that the mediator may “pop” in at any time. Be mindful and on the lookout. You do not have the benefit of a knock warning. Think about what is on your screen and what is being said. Try to stay engaged and keep your client engaged in the process. Think about your negotiation strategy, changes to your negotiation strategy, your next moves, options for settlement, your client’s interests, and all of this from the other side’s perspective as well.
Lawyer in Person/Client by Zoom
If you the attorney are going to be physically present at the mediation, consider whether you wish to have your client connected to the mediator’s computer or simply through your own laptop. The more practical approach where the lawyer is personally present for a mediation is to use Zoom on the lawyer’s laptop to communicate with his or her client.
Join the Mediation Five Minutes in Advance
Technical glitches occur for a variety of reasons and at the worst of times. It is always a good idea to join the mediation session around five minutes in advance. This gives you and the mediator an opportunity to address and hopefully resolve any technical difficulties prior to the start of the mediation.
When Technical Problems Occur
When technical problems occur (and they will), the first corrective action to take is to simply sign out (leave the meeting) and then sign back in. You should advise your client(s) of this approach as well. For reasons which the authors cannot begin to understand or explain, signing off and then re-joining the meeting will resolve many technical problems. If this does not correct the problem, simply call the mediator on his or her cell phone.
A Practice Session with the Client
In advance of the mediation, arrange to do a Zoom practice session with your client. If the client is very technology savvy and regularly participates in Zoom meetings, this may not be necessary. However, those clients who are unfamiliar with Zoom will find such a practice session helpful and reassuring.
Dress for Success
During the Covid-19 pandemic, casual Friday has spread to casual Monday through Friday. For the parties involved in a mediation, especially for individual plaintiffs, this is their opportunity to have their “day in court.” Attorneys who are participating in a Zoom mediation should, out of respect for the parties and the process, dress as if they were attending a live mediation.
Many in the legal profession will always prefer to have mediations live and in-person for all participants. Indeed, the advantages of spending time together in face-to-face dialogue during a mediation cannot be overstated. Many mediators and many attorneys prefer a mediation which allows for personal and direct interaction. Watching someone on video is not the same as watching them in person. The ability to meet and talk with people to help them solve their legal dispute is a wonderful opportunity for all involved. But, one of the lessons learned through our most unfortunate experience with Covid-19 is that mediations can be successfully and effectively carried out online or that at least some participants may have to participate remotely. For claims or corporate representatives or for parties who are a long distance away, travel can be avoided, and significant time and expense saved through a Zoom mediation. A scheduled flight late in the afternoon or a long drive home are no longer obstacles to cause a mediation’s premature conclusion.
The technology is now readily available to enable lawyers and mediators to conduct effective virtual mediations saving time and money for everyone. Dorothy was right: We’re not in Kansas anymore!