Remote Mediations: Tips, Tricks, and Lessons Learned
By Tom Wagner
As a result of the COVID-19 pandemic and global economic crash, mediations conducted remotely through videoconferencing software have become much more popular. The success of remote mediations depends on the consideration of logistical and technological issues ahead of time so that the parties can focus on the substantive issues at hand during the mediation itself. This article provides a summary of the key considerations for the mediator and the parties to the mediation to address in order to conduct a successful remote mediation.
The COVID-19 pandemic and the global crash in oil prices have made settlement and mediation more important than ever. The economic fallout of both events means that many plaintiffs are in need of the cash infusion that a successful settlement can bring, and litigants on both sides are increasingly unable to incur or uninterested in incurring the legal costs required to bring matters to a final hearing. At the same time, physical distancing requirements have closed courthouses and delayed arbitration proceedings, such that even those parties interested in proceeding with their disputes are and will continue to face even more delays than before.
In this context, mediations conducted remotely through videoconferencing software have become much more popular. If done correctly, remote mediations are an efficient, practical, and safe way to resolve disputes. This article provides a list of tips, tricks, and lessons learned from on-the-ground experience about how to successfully conduct a remote mediation.
- Be Prepared. Preparation is key and applicable to each suggestion below. This is particularly important if any of the participants to the mediation, and especially you or your client, have never participated in a remote mediation before. A relatively small amount of work upfront can prevent significant frustration on the day of the mediation.
- Consider Remote Mediation When Selecting a Mediator and Entering into the Mediation Agreement. It is crucial that the mediator chosen for the job and the mediation agreement between the parties reflect the fact that the mediation will be held remotely.
- Consider whether the mediator selected or proposed for the mediation is capable of conducting the mediation remotely. He or she should either be proficient in the software chosen or be ready and able to learn ahead of time.
- Considerations unique to video or teleconferencing should be incorporated into the mediation agreement. For instance, provisions barring recording of the mediation and permitting remote execution of the ultimate settlement agreement should be included.
- Give Control of the Conference or Video Call to the Mediator. The smooth running of the mediation requires that the mediator, rather than any of the parties, be in control.
- The mediator should be the host of the videoconference. Depending on the software chosen, this will give them the control to either move parties out to a virtual lobby or to set-up virtual breakout rooms.
- Each party should provide the mediator with the names of all attendees and their contact information, including cell phone numbers, prior to the mediation. This (i) allows the mediator to ensure that only authorized participants have joined the mediation, (ii) assists in assigning the correct individuals to the correct virtual breakout rooms, (iii) allows the mediator to give parties a warning before he or she comes into their breakout room (in lieu of the knock on the door), (iv) gives the mediator a direct line of communication to the lawyers if a direct conversation is warranted, and (v) allows the mediator to proceed by telephone if issues are experienced with the videoconferencing software.
- Agree Ahead of Time on Process and Software. The mediator and counsel should agree ahead of time on the software and process to be used. In particular, law firms and clients often have rules about which programs may be used, often for security reasons. The program to be used should be discussed well in advance to allow parties to consider the software with their IT departments and their clients.
- Agree Ahead of Time on Security Measures. The mediator and counsel should also discuss and agree on basic security measures to be used for the mediation. This includes:
- designating a password to enter the mediation videoconference;
- giving the mediator control over the “lobby” feature of the software, when available, so that the mediator must grant access to any participant to the mediation before they can join;
- checking all attendees regularly to ensure that only authorized individuals are present. This is also important to ensure that private discussions are not inadvertently held in front of opposing parties; and
- locking the meeting after all permitted attendees have joined.
- Prepare Yourself for the Mediation. This includes the following suggestions:
- Practice with the software. If possible, conduct a practice session with the mediator and opposing counsel before the mediation to ensure that all parties are familiar with the program and procedures to be used. If this is not possible, hold a call with a colleague or a friend to get familiar with the software.
- Learn about the various functions of the software. Whether or not you have used the software before, a refresher about the different functions of the software will be helpful. Most software contains helpful functions, like screen sharing, that you likely did not use on your last call home. Most software is also undergoing significant upgrades. Software that you used before may be significantly different the next time you use it.
- Ensure that a member of your IT department, if you have one, is available to assist on the day of the mediation if necessary.
- If you are attending with co-counsel, decide on a separate direct line of communication you can use with them during the mediation.
- Prepare Your Client for the Mediation. This includes the following suggestions:
- Make sure that the client representatives who are attending will have access to a private workspace with a fast and reliable internet connection and if possible, videoconferencing capabilities in order to attend the mediation by video or a telephone.
- Have a practice call with your client and explain the process. This not only includes having the normal discussion about how a mediation works, but also discussing the information in this article about how the remote mediation will work.
- Arrange a separate direct line of communication with your client for use during the mediation.
- Decide with your client whether they will be logged in to a videoconference all day for the mediation, or will participate by telephone. Ideally, your client representatives will be logged into the software all day, but will turn their audio and video off when the mediator is in other breakout rooms and discussion with counsel is not needed.
- Have Patience. There will likely be glitches. If you have prepared ahead of time, you will be able to work around them.
Tom Wagner is an Associate with Blake, Cassels & Graydon LLP in Calgary. Tom practises in the area of corporate/commercial litigation, arbitration, and dispute resolution, with a focus on construction and commercial leasing disputes.