During these unique and difficult times, it has been extremely important to adapt all elements of my practice to this new, increasingly virtual reality. One area of my practice that has been turned upside down by COVID-19 is the mediation process. Fortunately, mediating in a digital space, although new, can be effective and even have some benefits over traditional mediation if done properly.
Preparing for Zoom Mediation as a Mediator, Counselor, or Party
The key to facilitating a smooth and successful Zoom mediation is practice, practice, practice. I have found that the best way to get better acquainted with the Zoom platform is to do a dry run by gathering your friends, family, or co-workers to stand in as “parties” on a Zoom call. In doing this, you can test out of all of Zoom’s features that you may use during mediation. While technical difficulties are always possible on the day of mediation, the more comfortable you are with Zoom and its features, the better able you will be to navigate those difficulties as they arise.
The main feature of which all mediators must take advantage is Zoom’s breakout rooms. When mediating in-person, we have the luxury of having parties step in and out of conference rooms easily to facilitate conversations among various configurations of participants. Although it is not quite as easy in the age of COVID, Zoom’s breakout room feature creates similar flexibility by allowing the host to split participants into multiple “rooms.” While this feature is effective, it does take some time to get the hang of. Before your first Zoom mediation, make sure you are familiar with how to open breakout rooms, how to move parties between rooms, and how to add a room once your Zoom call has started. I have found it helpful to open at least six breakout rooms at the start of the mediation. This way, you will have plenty of space for various configurations and do not have to worry about adding rooms once you’re in the swing of things.
Although breakout rooms have been invaluable in the Zoom mediation process, there is one slight limitation. Unfortunately, Zoom does not have a feature that allows the host, to notify breakout room participants that you are going to join the room. This makes it difficult to ensure that you are not interrupting a private conversation between a client and their attorney. To prevent this potential faux pas, you can send a “chat” message via Zoom to inform the participants that you are entering their breakout room. You should also let the parties know that you may pop into their breakout rooms from time to time so they are prepared.
Other Tips for Mediation and Beyond
During in-person mediation, I find that it is much easier to find the time to take a break. When in-person, it is easy to say “let’s break for lunch” or “let’s take a ten-minute bathroom break.” To find that same balance, designate times to take a break where everyone can turn off their cameras and mute their computers. Then, set a time to start back up again. Long mediations can feel even more taxing when you are locked to your screen. It is easy for our eyes to get drained and feel like you are in a bit of a time warp.
Another problem that arises in the context of Zoom mediation is clients being unprepared for the mediation experience. Now that attorneys do not meet with their clients face-to-face, it is important to have a one-on-one Zoom call with your client before mediation. Part of this preparation is making sure that your client has a professional space for the Zoom call. In the few months that I have been practicing law exclusively on the internet, I have seen many parties not treating their e-proceedings with adequate respect. I have seen clients sitting on the floor, attending hearings in a moving car, etc. Before mediation, let your client know that just because the proceeding will be different, they must be as prepared and professional as they would be in-person. Many judges and mediators are put off by this lack of respect for the proceedings.
As mentioned previously, technological difficulties are virtually guaranteed on a Zoom call. To prevent simple microphone, speaker, or video problems, test out all of your equipment on the day of your mediation (or any other proceeding) to make sure everyone will be able to see and hear you clearly right from the start. In the event of more complex issues, make sure that whether you are the mediator, the party, or an attorney, you have either a backup internet connection or device to use. The better prepared you are to tackle these potential roadblocks, the better you will be able to replicate an in-person mediation experience.
Benefits of Zoom Mediation
Although mediating through Zoom has its own set of challenges, it has proven to be very effective. To start, it can be easier to schedule a mediation time that works for all participants when there is no need to consider travel times. Another benefit of mediating through Zoom has been the reduced tension that an in-person setting may create. In some extremely acrimonious cases, having the parties in the same physical space can be difficult to make steps toward settlement. The distance that the Zoom platform provides can make the parties feel more at ease and willing to resolve their matter in the security of their own home.
If you see a Zoom mediation or hearing looming on your calendar, do not fret. Take some time to get acquainted, prepared, and embrace the benefits that this game-changing platform can provide. See you on the internet!