The future of Zoom Mediation post pandemic

Tip No 1 – Get your background right

More than half my mediations as mediator in the last two years have been on Zoom, Teams or other remote software due to Covid restrictions.  Will we return to face-to-face mediation when the pandemic eases?

It is worth evaluating online mediation on its own merits, as an alternative or supplement to face-to-face mediation in the post pandemic world.

In my view Zoom mediation is an effective alternative, and in some respects is much better.   Consider these points.

  1. A lack of physical venue can encourage mediation
  • Since there is no physical venue, there is no hiring cost and no need to agree on a location.
  • Since there is no need to physically attend, attendance can be much easier and cheaper for all parties.
  1. Beware the informality of Zoom  
  • The relative informality of Zoom can leave clients less prepared to negotiate, especially if they are attending from home.
  • Before the mediation begins, you can get your clients in a “deal making head space” where they are ready to negotiate. 
  • Go over the basics such as costs of going to trial, cost exposures if lose, merits – Risks of winning v losing, the narrow limits of the of a victory in Court to the issues in the case v unbounded possibilities of a negotiated settlement
  • Work on this before the mediation.
  1. Practice with the software before the day
  • To test out the Zoom links, the mediator can host a pre-mediation session via Zoom as well.
  • Encourage clients to have their Zoom software in place and tested before the day.
  • Have side methods of communication set up for private secure chats with clients.  SMS/email/Whatsapp etc.
  1. The software has many convenient organisational features
  • It is easy to schedule meetings, send appointments, organise links, and use one click joining
  • Zoom can very effectively host larger numbers:  more so than physical venues
  • Anyone can attend at push of a button – it’s a lower cost to clients to attend and they can benefit – eg more well informed attendees to assist deal making
  1. A low-cost bridge across time zones and space
  • Cross geographic distances and time zones easily (esp international/interstate)
  • It allows parties to work in the background more effectively on other matters:  which means mediation is not as costly to attendees in lost time.
  • Remote attendance can make it easier to get instructions.
  1. Zoom/Teams are well adapted to mediation
  • The software can easily establish multiple rooms for the parties and joint sessions, in imitation of in person mediation
  • It’s also easy to move small groups into rooms for discussion – eg client only, lawyer only, subset of parties.
  • If needed (although I don’t encourage it) it is logistically easy to reconvene on a later date if a break is required with no resolution.
  1. Presentation possibilities are enhanced
  • Onscreen sharing of documents is easy
  • There is an ability to use documents in open session eg power point summaries
  • There is an ability to view key documents produced in the negotiations
  • Onscreen sharing of draft terms is useful to save time
  1.  Limitations
  • Not being in the room physically releases pressure on the attendees:  that be a disadvantage since  the grind of being in the room at an all-day mediation is often a key to getting a deal done.
  • The mediator and solicitors need to keep parties engaged and in attendance, even if doing other things.  Don’t let people leave the “Room” in the Zoom.
  • Zoom can be too casual:
  • Dress appropriately for a business meeting
  • Use business virtual background, keep the mood professional.
  1. Technical Traps
  • Don’t record the mediation:  it undermines the confidential and without prejudice nature of the day.
  • Be ready for internet or other Tech failures: have everyone’s details to easily re-establish contact.
  1. Terms of settlement
  • Drafting terms always takes time, sometimes too much time because of lack of preparation
  • Encourage the parties to prepare drafts in advance of the day
  • Use Zoom to work on collaboratively on draft documents where feasible.
  • If the terms aren’t signed, there is no deal:  discourage parties who want to leave the documentation to another day.
  • Use electronic signing – exchange counterparts or use apps such as DocuSign in a single copy.

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