Dear Colleagues:
Now that many of us have become conversant with Zoom mediations, perhaps more out of necessity than choice, it has occurred to me that this medium is actually ideal for mediations in some respects and thus will outlive the shutdown caused by Covid-19. While these observations are not original, I offer them as food for thought.
1] Zooming allows decision-makers to actively participate in the “smaller” cases.
Oftentimes an insurance adjuster or person with ultimate settlement authority is located across the country and really cannot afford to attend a half day Seattle mediation because of the travel and hotel expenses associated with it, when compared to the value of the case OR the amount of that person’s authority over and above a pre-mediation offer. That decision maker is often asked to change his/her previous evaluation based upon revelations during the mediation, the likelihood of which is significantly enhanced if the person has participated “live” in the mediation via Zoom.
2] Zooming allows attorneys to actually and effectively multi-task.
Lawyers spend considerable “down time,” particularly in a complicated, multi-party case, while the mediator is off “hammering” on the opposing parties. If the lawyer was sitting in his/her own office (or at home) and KNEW that the mediator’s decision to return to them was going to be preceded by a text 5 minutes in advance, think how many OTHER things that lawyer could actually get done. Now, one of the down-sides to this ability to isolate is that oftentimes some “nugget” idea about the case being mediated will occur to you during this down time, the opportunity for which will be lost if you are off doing something else.
3] Zooming facilitates scheduling and enhances participation.
The ability to schedule a mediation, when travel restrictions or limitations exist, is greatly enhanced if one of the parties whose schedule is particularly troublesome is allowed to Zoom in on an otherwise in-person mediation. Also, interested non-party participants (experts, corporate officers, accountants, relatives, etc.) can attend a limited portion of the mediation and provide their input, participate more directly, and then leave.
4] Zooming faciltates a joint session where some parties refuse to be in the same room with others.
I like joint sessions in almost ALL mediations: to explain the process, confidentiality, and how I intend to proceed. And, I like everyone to hear the same thing at the same time. In a small minority of cases, because of animosity developed in the litigation or some family dynamic, some participants simply refuse to be in the same room with their opposing party (or even opposing counsel). The same problem does not usually arise if the objecting party is simply sharing a screen with their nemesis.
5] Zooming can allow easier execution of a CR2A.
Upon a successful mediation, when a detailed CR2A (with blanks to be filled in) has been drafted in advance by one of the counsel, the multiple electronic exchanges of that settlement document, in Word format, for example, allows modifications more quickly and seamlessly than passing hard copies back and forth, usually the case at the conclusion of in-person mediations. Word format is just one of several different platforms (Google for example) available to mediators to communicated simultaneously with participants. This alleged advantage depends, of course, upon your comfort level with “online” modification exchanges: Some people just LIKE to hold hard copies and scratch out changes on them.
6] Zooming has trashed the dress code forever.
Just think, the “required” dress for a mediator from now on will be a pair of tennis shoes, jeans and a “dicky.”
There you have it. I invite you to respond with observations of your own and perhaps reasons which have not occurred to me why we may be “stuck” or “blessed” with this medium for many years to come.