The Covid-19 pandemic has wreaked havoc in our personal and professional lives. As a result, many of us have had to adapt to a new normal by making certain adjustments both at home and in the workplace. As a retired state Supreme Court Justice and experienced attorney, I have found a way to put “normal” into how successful mediations are conducted in a virtual setting.
In digital mediation, communication has been facilitated through such platforms as Zoom, Google Meetings, Microsoft Teams and Cisco Webex, to name a few. Finding the right platform that meets your business’s needs may seem daunting but it is really not difficult. Zoom has proven to be very useful for mediation practices. The platform is user friendly, makes communication seamless, and allows the mediator to separate parties in secure locations while assisting in negotiating settlements. The other platforms are still catching up and do not yet have the convenient “Breakout Rooms” that Zoom provides. Although issues have been raised about its security protocols, Zoom has addressed these concerns with extra firewalls and passwords, and greater transparency to its customers.
If attorneys wish to mediate cases through Zoom or another platform, there are several things to consider. First, make sure your mediator can adequately separate the parties in order to have confidential conversations. Breakout rooms are the online version of your own private room at a mediation. The mediator will be able to place certain individuals in a breakout room together and then join and leave the room as necessary. Make sure the mediator is comfortable with the necessary protocols utilized on the platform to avoid missteps and potentially deal breaking actions.
Second, take steps to ensure that the attorneys feel comfortable and conduct themselves appropriately during an on-line mediation. For example, in a recent mediation, I continually reminded the attorneys to mute themselves prior to moving to a breakout room, to prevent the parties from inadvertently disclosing confidential internal communications and strategies. The attorneys were grateful for the guidance, and the precaution given helped foster trust among everyone.
Third, as the mediation winds down and heads towards a successful conclusion, make sure the parties are comfortable memorializing the terms of their settlement in writing. This can be done by circulating a memorandum of understanding or term sheet, and having all parties email their assent. Alternatively, the settlement agreement can be executed more formally using Adobe Acrobat’s DocuSign - a wise investment for any attorney representing a client in an on-line mediation as the signatures obtained using this software generally carry more weight, thereby making it more difficult for the other side to attempt to back out of the agreement.
Fourth, make sure the mediator is experienced and has the ability to help the parties and their respective counsel navigate through on-line mediation. I have mediated thousands of cases, both in person, via phone and through on-line platforms, to great success. My experience as a Supreme Court Justice for nearly 15 years and prior time spent as a litigator have given me the tools needed to assist attorneys and their clients in negotiating cases to a successful conclusion.
As businesses begin to open up, Rosenbaum Mediations PLLC has masks, gloves and spacious conference rooms to handle socially distanced mediations for those of you who prefer to conduct meetings in person. Eventually, things will get back to normal, but until they do, make sure your mediator knows his or her way around on-line platforms and is experienced in both remote and in-person mediations.
~ Hon. Matthew Rosenbaum (ret.), is a retired NYS Supreme Court Justice and founder of Rosenbaum Mediations PLLC. He regularly mediates cases from both Federal and State Courts and has resolved thousands of cases, both small and complex. For more information, go to www.RosenbaumMediations.com.
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