Attorneys are living in a virtual world these days, which includes mediating and arbitrating online.
I have completed both mediations and arbitrations using ZOOM, but do we have an alternative?
Well, one prudent alternative is to meet in-person in an adequately sized room with everyone wearing a mask. I have completed both masked mediations and arbitrations, so let’s compare zooming with masking.
Pros To Virtual Mediations On Zoom
A virtual mediation is usually held on the ZOOM platform. (There are other platforms but ZOOM is by far the most common.) A ZOOM mediation typically begins with both sides and the mediator in a common virtual room. Alert, right here, you can turn off your camera or even participate by phone on ZOOM rather than staring at your opponent on your computer screen. This has been a benefit—I had a party who was so upset with the other party she did not want to be in the same room, so she was thrilled to stay at home using ZOOM and only see the other party on a screen. To put the icing on the cake, she could choose to not even see, or be seen, by turning off her camera or using her phone. This was kinda cool and led to a more peaceful and stress-free resolution. I am exaggerating; a mediation is never stress-free, but ZOOM resulted in less stress for her.
Another option with ZOOM is the “Share Screen” mode and I use this all the time to type up some form of a Settlement Term Sheet with input from the attorneys. I move the attorneys into their own breakout room, and we hammer out a term sheet/release/agreement, or whatever they want to call it, using Share Screen. Super-efficient and easy to operate.
Cons To Virtual Mediations On Zoom
The biggest downside of ZOOM—inability to fully assess the other side. In-person meetings allow us to see others in real-time; observe their gait and gestures; and hear their true voice (and not a tinny ringing with plenty of interfering background noise-ask me about the day a concrete mixer parked right outside my home-office window.)
Pros To Masked Mediations and Arbitrations
The in-person alternative to ZOOM is a masked mediation/arbitration. When using this option I believe it’s important that all parties agree to what they feel most comfortable within the midst of the pandemic. Some scenarios that make sense to have in-person are:
- the dispute is pre-litigation and meeting in-person allows the defense to see and hear the plaintiff in real-time;
credibility is especially crucial to the case; - small number of participants and ability to meet in a room large enough for everyone to spread out;
- large number of exhibits that make referring to those exhibits using ZOOM slow and clumsy;
- few witnesses so the chance of spreading disease is reduced.
Cons of Masked Mediations and Arbitrations
The biggest downside of masked mediations and arbitrations is the loss of seeing the participants’ full face. Emotions are shown on our whole face, not just our eyes, so whatever assessment we think we can make about the participants is diminished. Maybe appreciably diminished, since the masks can be tight and uncomfortable.
Best of Both Worlds With KIM L. KIRN Mediations and Arbitrations
These days as I schedule mediations and arbitrations, I seek the preferences of the attorneys and follow them—BUT, if the attorneys want to meet in-person, I strongly encourage them to agree to go by ZOOM if we are unable to meet in-person. I want to protect the schedule and move the cases forward. As you may have read in my previous blogs, ZOOM can be a great time-saving tool for some if not all aspects of mediation.
Let’s be clear ADR works better when all persons, especially the decision-makers are in-person. However, during these strange times, we choose between two imperfect options. They can be successful and I can bring my expertise to conduct either ZOOM and masked ADR processes to the table as your mediator or arbitrator.
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