Amy Rubenstein and Ileana M. Blanco | DLA Piper
While in-person mediations may be preferred, some parties have been required to proceed with remote mediations to mitigate further delays during the coronavirus disease 2019 (COVID-19) pandemic. To help adapt to this procedure, we provide these 10 recommended tips for consideration when taking or defending remote mediations:
- Preparation. Virtual mediations require more − not less − advance preparation.The mediator needs persuasive position statements and exhibits before the mediation whenever possible. Consider advance discussions with the mediator for each side to preview positions.
- Agreements with opposing counsel. Before the mediation, confirm any party stipulations, starting times and limitations (including related to non-recording), and locations of participants.Send calendar notices, including to the mediator, that account for time zone differences.
- Governing rules. Know the rules in advance. Who can mute the host, mediator, parties? Will it be short or lengthy sessions with scheduled formal offline breaks? Will private caucuses be done in remote virtual rooms, will the parties participate through different platforms, or will the parties leave the joint sessions and rejoin when ready to resume discussions with the mediator?
- Mediation environment. Dress appropriately, from head to toe, and maintain professional visual surroundings.
- Technology. Technology is paramount for virtual mediations. In advance of the mediation, arrange to have access to an IT technician who will be available to help with any technical glitches.When possible, avoid handling the technical aspects unless it will not be distracting. Otherwise, arrange to have someone else handle the technology so that you can focus on the mediation.Know the operations and limitations of the chosen platform and have a backup technology plan.
- In-session communications. Have a system in place to relay private messages to participating colleagues or co-counsel and your client, without inadvertently communicating with the mediator or opposing counsel.
- Preparing clients. Provide detailed advance explanation to the client of the mechanics involved with the remote mediation and conduct a test run for the mediation incorporating all aspects of the proceeding.
- Settlement agreement. Have a draft mediated settlement agreement prepared in advance and an agreed system for executing remotely so that everything can be finalized if settlement is reached.
- Payment arrangements. Arrange for payment to the mediator in advance to ensure the mediation proceeds as scheduled.
- Stay focused. When engaging with the mediator during the virtual mediation, avoid texts, e-mails, and other distractions unrelated to the mediation that may unintentionally signal a lack of interest or commitment.