Patrick McKnight | Forum on Construction Law
Despite the ongoing pandemic, attorneys require effective methods for resolving construction disputes. 2020 has proven that legal conflicts are the natural result of the unprecedented uncertainty a global pandemic can produce. Parties need to resolve conflicts to continue business operations, pay employees, and protect property. Litigators have increasingly utilized virtual meeting software to achieve these goals.
Mediation can be a great opportunity for litigators to resolve construction disputes without the time and expense of going to trial. Given the ongoing COVID-19 pandemic, mediations are increasingly being held virtually using technology like Zoom. While many of the same best practices apply, certain aspects of the virtual mediation process are a brave new world. Construction lawyers should be prepared to embrace the new challenges and opportunities offered by the “new normal” of remote mediations.
Like a traditional mediation, successful attorneys invest their time to select the best mediator, prepare clients for the process, and manage expectations. Although these fundamentals continue to apply regardless of the format, this article will focus on steps particular to virtual mediations.
Preparation and Communication
A pre-mediation call remains critical to a productive mediation. Clients, regardless of their level of sophistication, should hear an explanation of the mediation process. This call should both manage a client’s expectations and answer remaining questions about how mediation differs from litigation.
Next, discuss the special characteristics of a virtual mediation. The mediation may include a pre-mediation session with the mediator. One obstacle lawyers report with Zoom mediations is establishing trust and good communication with the mediator. A virtual pre-mediation conference with the mediator may be helpful to help get this process started.
The client may require reassurance that private communication remains available in the context of a virtual meditation. Review expectations about confidentiality and security, such as whether the Zoom mediation should be password protected, and additional security measures, such as utilizing the most current version of Zoom and controlling access to the participants’ locations. Multifactor authentication may be a good idea when privileged, confidential, or sensitive information is involved.
Getting Comfortable with Zoom
This is where things really start to get interesting. Attorneys should make sure to discuss the specifics of Zoom or other virtual meeting technology with clients prior to the mediation. Part of this process is simply increasing a client’s comfort level. Many lawyers have reported conducting a practice or dry-run helpful to walk the client through the process. Some clients may benefit from a friendly reminder about selection of appropriate clothing and location. The client should be in a location with a strong WiFi connection which should be tested in advance. Ideally the location will be without background noise or other potential distractions.
The parties should make sure to allocate a specific amount of time to devote to the mediation, free from distractions and interruptions. This is often challenging when participants are located in their own homes or offices with their phones and computers close at hand. Multitasking and phone pick-ups can easily distract participants from the business at hand.
Plan for confidential communications with your client during the mediation. An additional, private virtual room should be made available. Depending on the client and the case, texting, emailing, or instant messaging may be a workable backup solution.
What About Documents?
Sharing information in advance can help resolve logistical and technical issues prior to the mediation. Zoom allows sharing documents during the mediation through its “share screen” button.
Sharing documents in advance will allow the mediator and other parties the opportunity to review. When confidential documents need to be shared with the mediator only, it is a good idea to establish a standard procedure. Dropbox, Google Drive and other tools can be extremely helpful when used with appropriate precautions and safeguards. Depending on the document, having a hard copy in your hands is never a bad idea. In addition to serving as a back-up for unexpected technology issues, many of us benefit from having a physical document to reference.
The same logic applies to draft settlement agreements. Like other documents, these should be circulated in advance. This way everyone has the opportunity to digest the proposed terms. Hopefully this can help parties focus their energy on the most important disputes. Often a settlement agreement can be edited and shared during the mediation. Adding appropriate labels such as the date and time can help make sure everyone is referencing the identical, most up to date version.
Many mediators will encourage parties to share their mediation briefs with each other. This can be a context where tone becomes very important. A diplomatic tone in a mediation brief may be even more important for Zoom mediations. In virtual meetings parties do not enjoy the same opportunities for building trust and rapport relative to a traditional, in-person meeting. Take this into consideration when deciding the appropriate voice for your mediation brief.
The Day of the Mediation
If the parties have prepared, planned, and consistently communicated leading up to the date of the mediation, the day itself can run surprisingly smooth. Using new technology can always bring unwelcome surprises, but a thorough WiFi test for internet speed can help identify and eliminate many common issues like frozen screens and interrupted audio.
Before any conversation, participants should confirm who is actually in the room. This practice can help maintain confidentiality and help parties feel comfortable to speak freely.
Most virtual meeting platforms will allow the mediator to create separate “breakout rooms.” It is a good idea for the mediator to set these up first, then visit each breakout room individually to confirm everyone is where they need to be. Like traditional mediations, Zoom allows a mediator to travel between separate rooms to conduct private conversations with attorneys and their clients.
Signing the Agreement
If the mediation was productive and the parties are ready to sign an agreement, now what? Electronic signatures can be applied using “DocuSign” and other similar programs. If completing a written settlement agreement is not possible, parties can tentatively agree that all material terms are resolved. Memorialize this agreement in a term sheet.
Even if only a limited or partial agreement is reached, a term sheet can still be created and signed. A good mediator should remind everyone that, notwithstanding this positive development, such a limited, tentative agreement will be unenforceable. Make sure to schedule a second mediation date to keep things moving towards settlement.
Conclusion
Out of necessity, the COVID-19 pandemic has given birth to a flourishing market for virtual meeting technology. The legal uses of Zoom and other platforms will continue to evolve and improve in the future. For now, litigators have already developed enough best practices to settle many disputes remotely. Fortunately, many of the same tips apply. Communication, planning, patience, and preparation continue to be crucial for a successful mediation both on and offline.