Updated: Oct 20, 2020
If there’s one thing I’ve learned during this past year with my mediation practice, it’s to go with the flow, embrace change and adapt to our unique period in time. Below you will find some of the key points in successfully handling remote mediations, and how to become accessible to hold virtual mediations, anywhere in the world.
Although attorneys and clients have traditionally favored in-person mediations, the rapid increase and success using remote mediations - accelerated by current social distancing requirements - has drawn attention to some of the advantages offered by this form of dispute resolution. The ability to choose highly experienced mediators from any geographical location is one of the great unintended benefits for lawyers and their clients. As a result, I have experienced an increase in ADR interest from attorneys outside of my area, including New York City, Atlanta, Los Angeles, Chicago, Washington DC, the United Kingdom and Israel, to name just a few.
My offices have been conducting in person, socially safe mediations for the last several months; however, I also handle remote mediations on a regular basis. As remote mediations become more mainstream, mediators, attorneys and clients will need to become comfortable with conducting mediations in a virtual setting using a variety of digital platforms. With that in mind, here are a few critical pointers for conducting successful remote mediations, anywhere.
1. Understand the digital platform you are using. I have heard a number of
complaints from colleagues about the difficulties they have had exercising control over and navigating between the parties while conducting remote mediations. To be successful in running a remote mediation, all involved must take the time to understand the basics of how to use the various digital platforms for virtual communications. The good news is that these platforms (e.g., Zoom, Google Meet, Microsoft Teams and Cisco Webex Meetings, to name a few) are user-friendly and do not take long to learn. Mediators who become familiar with these applications will be able to seamlessly facilitate discussions between the parties and inspire confidence from participants. All of my pre-mediation conferencing is done virtually. It’s time saving and cost effective. Plus, it is much more enjoyable conducting a virtual pre-mediation conference than via impersonal - and sometimes misinterpreted - emails and texts.
2. Practice, practice, practice. In the process of learning how to use a particular digital platform, practice using that platform with your staff, or even your family. Know the basics from muting parties to turning on and off your video. From there, place various employees or family members in and out of breakout rooms. Learn to use different security codes for each matter. Schedule virtual meetings and send out invitations. Know how to accept and decline invitations. Mastering these basics is easy and straightforward and will help facilitate more productive and enjoyable mediations.
3. Know preferred applications. Zoom is hugely popular and I use it frequently. Their “breakout rooms” in particular are invaluable when there is a need to discuss certain matters privately with one or more parties. They have also completely upped their game in having a secure platform. Recently, the NYS Unified Court System announced its preference to use Microsoft Teams for conferencing. Microsoft Teams is also user friendly and provides certain benefits that Zoom does not, including bundling some of their products with a subscription. According to Microsoft Teams, they will have their own version of breakout rooms before the end of 2020, which is critical when navigating between multiple parties. Know what your State Bar is using and make sure you sign up and familiarize yourself with their preferred platform. The cost is fairly minimal and one mediation or several conferences will pay for a one year subscription.
4. Overcoming camera anxiety. A successful mediator should exhibit good social skills and be comfortable interacting with the parties in a virtual environment. Interestingly, I have found that on-line mediations can cause people to become more self-conscious and less relaxed when communicating with others, which can lead to exaggerated behavior. It’s the visual component that tends to trip them up. People are generally not self conscious when talking on a phone; however, once they are on camera, they may feel an urge to “perform,” and can become self conscious about how they appear. Again, practice on your computer so you can see how you look and maximize your appearance. Once that is accomplished, try to envision your virtual meeting as if you are talking to the other party through a glass partition in your office. It will relax you and make it easier to be yourself. In my experience, virtual meetings can have the added benefit of fostering a level of collaboration not normally seen in litigation matters. While engaging in on-line communications, be friendly but also maintain a professional demeanor.
5. The benefits of embracing change. Remote mediations have become a useful, and likely enduring, option. Change can be a good thing. It is human nature for people to want to be together. It’s in our DNA to be social. Remote mediations have taken that social component and helped us adjust towards the need for collaboration within this environment. It has also given us the ability to mediate anywhere in the world with anyone, giving attorneys and parties the flexibility to pick a mediator without geographical limitations. Now parties may select experienced mediators in specialized fields such as commercial litigation, medical malpractice, toxic torts or any other area that provides them with a seasoned mediator with particular expertise.
As a neutral, I feel an obligation to do my part and help people resolve their problems and move on with their lives. That process includes understanding how to conduct successful remote mediations using the various digital platforms designed to facilitate effective communications between mediators, attorneys and their clients. As remote mediations become a more permanent fixture in ADR, mediators should take the necessary steps to ensure that they are ready to participate fully and successfully within this environment. My many years as a State Supreme Court Justice, designated to handle complex litigation matters, allows me to mediate with parties from all over the United States and internationally. I continue to conduct in person, socially safe mediations. But I also do my fair share of hybrid and totally remote ADR. Virtual mediations are here to stay and that is good, safe and productive for everyone.
~ Hon. Matthew Rosenbaum (ret.), is a retired NYS Supreme Court Justice and founder of Rosenbaum Mediations, PLLC. He has resolved thousands of cases, both small and highly complex. For more information, go to www.RosenbaumMediations.com.
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