Emily Sides Bonds
Partner, Jones Walker LLP
Emily represents agents and brokers, directors and officers, other professionals, and business entities in professional liability, products liability, mass tort, class action, banking and financial services, insurance coverage, and other commercial litigation. Her practice extends to all state and federal courts in Alabama and Mississippi. In addition, Emily is a trained mediator and arbitrator.
Life has changed in the last few months. New words have made their way into our dictionaries: Covidiot (someone ignoring public health advice), covideo (online parties on Zoom), the “rona” (Coronavirus), and covexit (strategy for exiting the lockdown). Social distancing was apparently an established phrase, but I had never heard of it.
COVID-19 has significantly altered the way in which witness interviews, depositions, mediations, and even trials are being conducted. We are forced to handle tasks virtually or remotely instead of in-person as we have done in the past. To say the least, this unprecedented, unpredictable, and ever-changing time demands that we examine and understand how to participate in and be on top of our game when conducting discovery, mediations, and trials remotely.
The current state of this pandemic will demand remote mediations for the near future. However, I anticipate that remote mediations will continue even after the pandemic has subsided. If done successfully, participants will want to continue this practice for the efficiency and cost savings that it brings to the litigation process. Of course, the opposite is true: if participants to remote mediations have a bad experience, they will be less likely to want to continue the practice once COVID-19 cases decrease.
I am Emily Bonds, a litigator and mediator licensed in Alabama and Mississippi. This post contains my “Top Ten” list for successful remote mediations.
#1: Confirm with Mediator/Attorneys how Participants Will Appear at the Mediation
Nothing gets a mediation off on the wrong foot like the opposing side believing that a party or insurance representative will appear in-person, only to find out that the person is only available by phone and possibly for a limited time period. Make sure your side confirms how each attorney, party, and insurance representative will appear. Do not depend on the mediator to begin this discussion; instead, make sure your attorney confirms and manages the opposing side’s expectations for attendance.
#2: Pre-session with the Mediator is a Must
With a remote mediation, it is tempting to just show up and let it all work out. This follows typical mediation practice. Lawyers draft and forward position statements, mediators review those statements the night before the mediation, and everyone shows up without knowledge that there is a roadblock to a successful resolution. Make sure that your attorney has talked with the mediator about the upcoming mediation and not just through a last-minute position statement. I have found that a pre-mediation session is the most over-looked and under-used tool in trying to get cases resolved. Your lawyer could suggest a pre-mediation meeting with the mediator via Zoom. The mediator should make the same suggestion. If no one does it, then you make the suggestion. It is an easy way to begin the building blocks to a successful mediation.
#3: Schedule a “Dry Run” with the Attorney and Party/Insured
If this is your first time utilizing Zoom or another virtual meeting service, take the time to request that you and the attorney conduct a “dry run” of the process. This may be more important for the party/insured who is likely to be less familiar with the mediation process itself. Misunderstandings and confusion can be avoided by simply trying it out beforehand so everyone is on the same page.
Also, you may need a plan for how to communicate with each other in the event that you are unsure if your discussions are confidential. Make sure all participants on your side have each other’s cell phone number.
#4: Be knowledgeable as to how Zoom Works
Most of us had never even heard of Zoom before March. Now, we have to know the ins and outs of it in order to have a successful mediation. Most law firms and insurance companies are conducting training on how to work Zoom and how to effectively participate in it. Take advantage of the resources available to you.
The remote mediation will likely be hosted by the mediator. The mediator can put each side into a waiting room and then caucus back and forth between the parties. Make sure that you discuss with the mediator that he/she will announce his/her appearance into a waiting room to which you are a part. Because you may have some uncertainty about the confidentiality of your waiting room, I would be careful as to any comments that may be deemed derogatory to the opposing side or the opposing side’s case or claims. A colleague of mine recently shared with me an experience in attending a remote mediation. The mediator forgot that he was in the waiting room with my colleague and his client. The mediator made a derogatory remark about the client. That one event made my colleague and his client completely distrust the process. The mediation was not successful.
#5: Make Sure the Remote Mediation has your Full Attention
Some insurance representatives are double booking their remote mediations. I get it. There’s a lot of downtime during a mediation and we all want to be efficient. I advise against this! You will be distracted and likely with too much on your mind to effectively hear the positions being taken by the opposing side, the mediator, and even your attorney. Also, avoid half-way participating in the mediation by checking email or surfing the web. While it may appear that multi-tasking is effective, it actually may increase the time you spend at the remote mediation because facts and strategies had to be repeated to you while you were in the midst of checking your email.
#6: Sharing your Screen can be an Effective Tool
Zoom has an awesome feature that allows a participant to share his/her screen. Your case may have a complicated damages calculation or your attorney may want to share the points of the summary judgment motion with the mediator or the opposing parties. Think outside the box with your attorney as to what will be most effective way to present your side of the case at the mediation.
#7: Observe Proper Etiquette
Check your computer or phone camera to make sure it is smudge-free before joining the mediation. Make sure your appearance is professional. Do not wear clothing that is the same color as your background because it will cause you to fade out. Mute your audio when you are not talking. If you do not have an office, then use earbuds or a headset to avoid background noise and maintain confidentiality.
#8: Check your Lighting and Background
If your law firm or insurance company has a professional virtual background, then I would use that. I would not use an alternate background, such as a beach, which looks unprofessional. I actually had this happen in a hearing where my client was participating. All of the participants appeared as if they were in their office. My client looked like he was on the beach in Tahiti. This is probably not the image you want to portray. The use of a background is something you, your attorney, and the party/insured can discuss during your “dry-run” mediation.
#9: Don’t be too Close to the Camera or have it Below You
This tip is self-explanatory. If you are too close to the camera then you are not portrayed professionally. If the camera is below you then the other participants can see up your nose!
#10: Make Sure You have a Sufficient Internet Connection.
Last, but not least, make sure you have a sufficient internet connection. If you are working remotely and your home internet is spotty, you may need to visit the office for the mediation. Mediations conducted remotely can really go downhill when the opposing side has to wait for the other side to figure out their internet issues. This can be avoided by a dry-run mediation.
Remote mediations are here at least for the short-term, and my prediction is that they will be here in some form or fashion even after COVID-19 is under control. A remote mediation is an effective and efficient tool, but it must be managed appropriately. Expectations must be managed for how participation will occur. Participants must be educated and well-versed on whatever system is used to conduct the remote mediation. Following the tips listed here will give you a leg up on this process and hopefully make the remote mediation successful.
All this being said, I hope that in-person mediations never go away completely. There are many cases where the lawyers and insurance company representatives need to be present to judge the credibility of a witness, to size up the opposing counsel, or simply to set the tone that the defendants are serious about resolving the case.
Good luck with your remote mediations and please feel free to email me at firstname.lastname@example.org. I would love to hear your stories and other tips on remote mediations.