Tiffany R. Caterina | Frankfurt Kurnit Klein & Selz
The current COVID-19 crisis has forced businesses and their counsel to undertake remote mediations. The cost savings, convenience, and expedited scheduling associated with remote mediations guarantee that they will continue in the future, including well after COVID-19 abates. Here are five steps all clients and practitioners can take to help optimize their mediations.
1. Set the Ground Rules. Before the mediation, confirm with the mediator and the opposing side who is participating in the mediation and whether by video or telephone. Given the convenience of remote mediations, and to help ensure the mediation effort is worthwhile, attorneys should insist that all individuals with final settlement authority participate. The parties should agree that there are no undisclosed participants sitting off-camera, which could impact the parties’ negotiation strategies and compromise the mediation’s confidentiality. Also, make it clear to all participants that any recording of the mediation is prohibited.
2. Familiarize Yourself with the Technology. Before the mediation, discuss technological capabilities with the mediator. If your mediator intends to use virtual break-out rooms, discuss the process for doing so. Know how the mediator will signal you prior to entering your break out room. Discuss whether you will be able to show the mediator important documents via screen-sharing. Request a test run with the virtual platform. Have a backup plan for your video conference, such as a separate audio-only conference line or other arrangement.
3. Set The Stage. Before joining the remote mediation, make sure your presentation is professional. Remove distracting or inappropriate images that could appear on camera. Consider utilizing a virtual background, such as your firm or company’s logo. Make sure you are well-lit from the front; bright light behind you (such as open windows with sun) may create dark shadows over your face and potentially detract from your presentation. To help give the appearance of eye-contact when you’re speaking, position your camera slightly above eye-level and, if you are using a separate webcam, keep it near your screen. Also consider your distance from the camera: you want to appear at approximately the same distance as you would be if you were meeting in person.
4. Dress Appropriately. While it may feel silly to dress in a full suit to sit in your living room, a professional appearance signals respect for the mediator and other participants and that you take the mediation seriously. Dress is business casual attire from head to toe.
5. Ensure Confidentiality of Communications. Have a system in place to relay private, in-session messages between attorney and client, without inadvertently communicating with the mediator or opposing counsel, such as using a private phone line or test messaging. Mute yourself when you are not speaking to avoid disruptive background noise. Keeping yourself on mute as a default also avoids the possibility of accidentally revealing a private conversation with your client conducted by phone to opposing counsel and the mediator.