Business meetings, court proceedings, family reunions, even weddings, are all taking place online these days, for reasons we know all too well. Litigation has moved online as well. One feature of almost every lawsuit is Mediation – a structured settlement conference, usually court-ordered. If you sue, you will be required to mediate before you get a chance to win your case at trial. The skills of trial lawyers include the ability to handle mediations. Those skills are tested differently, and yet the same way, in an online mediation. The chances are that your next mediation will be conducted virtually. Jim Lussier writes to share a recent experience with an online virtual mediation.
In October, 2020, Jim Lussier hosted an online Zoom mediation. While the parties did not settle the case that day (it took another two weeks of discussions), it was still an effective attempt. Prior planning and an understanding of the technology made it work. Jim explains:
Two construction companies were in a dispute over a fire/crash/rescue station project. The general contractor wanted $1.2 million because the project was significantly late being completed. The subcontractor wanted its final payment of $600,000.00 for a “job well done.” Ten people (four of them were attorneys) participated via Zoom from seven different locations in four states. The Mediator was at his home in Virginia.
We started with everyone looking at everyone else on one screen in the main session. After more than one hour of opening statements and general discussion, we separated into breakout rooms – one room for each party. The Mediator then electronically “entered and left” each breakout room, engaging in the ping pong diplomacy known as mediation.
I knew that this was probably my only chance to speak directly to the other client. I also knew that because I went first, I had the opportunity to control the information that the Mediator needed to understand our position. I prepared a PowerPoint presentation with 28 slides and a written opening statement that my client pre-approved, mainly for tone. We did not want to throw bombs, but we needed to be clear and firm.
The opening statement made it clear we were there to negotiate and resolve the case. Although that seems obvious – after all, it was a mediation – we did not think the other side was ready to settle. The slide show allowed me to educate the Mediator on the relevant physical aspects of a construction project he had never seen. I then presented excerpts from contracts, schedules, and correspondence to make major points favoring my client’s position. My purpose was to “control the room,” which, because of the technology, I was able to do. Zoom’s “share screen” feature worked very well. I had the floor and was essentially uninterrupted. When everyone is looking at the same thing and it is what I want them to see, persuasion opportunities exist.
Rather than describe more about the substance of the negotiations, I want to describe how the technology worked and affected the mediation.
Hosting: because my firm had the Zoom professional license, I scheduled the meeting and was the initial Host. It was my intention to make the Mediator a Co-Host. Unfortunately, the Mediator was unable to use the audio connection through his computer, even though the video connection worked perfectly. Zoom provides a phone-in link as a backup, so the Mediator communicated through his cell phone. This was disconcerting at first, but we soon discovered that there was no sound quality loss, and there was no time lag between the Mediator’s lips moving and the voice being heard. However, this forced me to be to remain the Host throughout the 8 hours of mediation. As Host I controlled the Mediator’s transit from one breakout room to the other instead of letting him do it himself as Co-Host. He had to call or text me every time he wanted to change rooms. I got faster at it each time, but I kept waiting for his cell phone battery to die.
Other tips: practice with your client before hand. My clients were not used to Zoom. I coached them on placing the camera close enough so that their faces were not to small to see, and so their voices could be heard. If you want your expression to be observed, your face must be well lit. The background behind your head should not be glaring sun through open windows. Zooming from home has special treats: the Mediator’s dog visited us a couple of times. Try to eliminate distractions and interruptions from outside your video cocoon.
Without the preparation of the PowerPoint and practicing, the other glitches would have been harder to handle. Overall, however, the Zoom mediation seemed just as effective as an in-person mediation. We did not settle the case that day, but thousands of dollars were saved in travel time and expenses. As professionals, we must expect that the post-COVID world will continue to use virtual technology. I am certain my next mediation experience will be better, just as I am certain that I will have more of them.
Jim Lussier practices civil litigation, business law, construction law, intellectual property law and arbitration with Mateer Harbert in Orlando FL.