Virtual Mediations Are Zooming Forward . . . Jump on Board

R. Thomas Dunn | Pierce Atwood

With most of the country on stay at home orders of some variety and court closings, parties to claims, litigation, and arbitrations are adapting quickly to virtual litigation activities that are customarily done in person.  This includes virtual depositions, mediations, arbitrations, and trials.

In this post, I will talk about virtual mediations.

Contractual mediation is a requirement in many construction contracts to proceeding forward with litigation/arbitration.  There is often a period of time in which the mediation should be concluded before a party may proceed to the next step of dispute resolution.

No matter the parties to the case, it is customary for parties, their counsel, experts, and insurance representatives to meet in-person at the mediator’s office, one of the law firms, or some neutral location like JAMS and/or AAA’s offices.  The physical presence is an advantage in that it gets parties and their counsel together at the same place with one objective in mind — settle the case.  There is an unspoken “dance” that occurs whereby parties engage in substantive discussions for a period of time before “talking about the numbers.”  Many times a mediation does not settle until after pizzas are ordered and the moon rises. While the mediator spends time with one of the parties, other parties are left to talk about the case (or often whatever else is on their minds).  There is a lot of downtime.

It can take weeks/months sometimes to schedule a date that works for all interested and necessary parties.  If your deposition that took months to schedule is in April 2020, or if you have a claim that is time sensitive and you must proceed through the contractual mediation requirement, chances are you and your counsel will get out of your comfort zone and try out a virtual mediation.

While a mediator may modify the mediation process according to the particular facts, people, and procedural posture of the matter, a construction mediation normally goes through a series of familiar steps.  With social distancing amid COVID-19, construction companies and their counsel will have to convert to virtual mediations in the short-term, and perhaps it will have some lasting impacts as well.

Below is a general outline of what typically occurs in a construction mediation.  Contrasted against that in italics is how a virtual mediation would differ.  I will also highlight potential pros/cons for your consideration.  

Initial Scheduling Call:  An initial call with the mediator is often scheduled to discuss generally the nature of the dispute, pick mediation date(s), and set pre-mediation disclosure time periods.

• This is a great opportunity to perform the first test run of the video-conferencing platform and other connectivity issues for your virtual mediation.  Levels of sophistication and experience will differ for counsel during this call and it is better to flag the issues at this stage than to have the detract from the date of the mediation.  
• If severe technical issues remain during this initial video call for one party, a back-up call-in number should alleviate those issues promptly.  The mediator’s office should then work with that counsel to troubleshoot and resolve the issue.  
• The mediator should identify her office’s protocol and policies regarding virtual mediations including:
  • Identify the platform – zoom, webex, gotomeeting, google meet.  Most are using zoom right now, including JAMS.
  • Testing of connections.  There should be a formal testing of devices / connections before the date of the mediation.  The mediator must confirm with the attendees that the “tested device” will be the same device with the same internet connection as used on the day of the mediation.
  • Identify internet speed. 
  • Obtain each attendees mobile phone number. 
• The mediator should confirm the number of parties (need a separate breakout room for each party) and evaluate how many additional breakout rooms the parties anticipate they may need.     

Pre-Mediation Filings: These are memoranda filed by counsel before the mediation for the purposes of the mediation only.  They are protected as confidential mediation disclosures.  Many construction mediators strongly encourage these pre-mediation filings be shared with all parties while also inviting “mediator only” confidential submissions.

• No change in the process for virtual mediations.  

Pre-Mediation Conference with the Mediator: Given the complexities of construction cases, it is common to have an early, separate confidential caucus between the mediator and each of the parties.  In some cases, advance education of the mediator is performed through the use of experts or otherwise.  In some cases, mediators have traveled for two full days for such educational pre-mediation sessions with one of the party’s experts.  Normally, this pre-mediation call lasts under 1 hour and occurs a few days before the mediation, but after disclosure the pre-mediation statements. It is a productive for the party representatives to attend this pre-mediation conference.

• This is your second test run of the video capabilities.  Not only for the counsel, but also for client representatives who are attending remotely.  Technical issues should be resolved in real time during this call with the mediator and her staff.    
• Having the client representatives participate in this call is very helpful.  For some construction companies, any mediation will be new let alone a “virtual” one. It is important to have your client representative feel comfortable with the communication medium and get to know the mediator.  This is an excellent opportunity for the mediator to evaluate the parties herself before the joint session.  

Mediation Prep: This depends on the case and many other factors.  Ultimately, each party’s construction attorney (in consultation with the mediator) will perform the tasks necessary to be prepared for the mediation.  At a minimum, the construction attorney should talk about the strengths/weaknesses of the case and evaluate settlement ranges.  Beyond client communications, attorneys will prepare some sort of opening remarks or powerpoints regarding their client’s case.  There may be presentations by experts planned as well.  Some of these prep meetings occur in-person and some already occur virtually (particularly those with experts).

• Depending upon continued application of the COVID-19 outbreak, this preparation session will likely be held virtually as well which will give all participants in the mediation the ability to increase their comfort and experience communicating and making decisions via video-conference.  
• If there is a presentation to be given by counsel or the expert, a dry-run of the presentation can be performed ahead of the mediation.  Questions and uncertainties regarding conference room technology are eliminated if the presenter knows the platform being used for the virtual mediation.  In fact, the presentation can be recorded by the attorney/expert.  This “mock mediation” will allow for adjustments and comment from the client.  

Traveling to and Attending the Mediation: Customarily, parties travel to a neutral spot for a mediation .  For example, in a mediation I had, the parties traveled to Chicago (where no parties or counsel resided) because it was easy to travel they by those attending from the different parts of country.  For that mediation, we rented a few airport hotel conference rooms for a couple of days and conducted the mediation.

• NO TRAVEL NECESSARY!!!  Virtual mediations can be performed where each attendee is in a different location.  In many mediations, the question brought up is who will attend with authority.  Sometimes counsel reply that their adjuster will not attend the mediation, but will be available by phone.  Well, now that everyone is joining remotely, that excuse regarding participation is eliminated.  Same applies for key decision-makers within companies.  Even if they are not listed as an attendee, it is straight-forward to add an attendee to a zoom meeting if that becomes required.  
• COST SAVINGS!!! In addition to the convenience of virtual mediations, there can be a substantial cost savings associated with it.  Large construction cases often require more than one attorney to work on a matter.  While it may be cost prohibitive to bring 2-3 attorneys to a full day mediation, having those attorneys available from their desks when needed adds minimal cost and contributes needed perspectives given the information that those attorneys may possess about the matter (particularly in joint session). The cost savings can be substantial. A colleague recently told me that he participated a virtual mediation with 50 participants.  In previous mediation sessions, they all traveled to the locale of the mediator.  During the virtual mediation, there were no travel costs.  

Joint Session: The joint session is often the start of the mediation after the mediator gives her opening remarks about confidentiality and the mediation being a voluntary process.  The objective is to allow each party to concisely describe the merits of their position.  This advocacy is meant to highlight the strengths of a party’s case.  It is a unique opportunity to speak directly to the other side’s decision-maker without interruption.  The best approach is to be non-argumentative and factual.

• The joint session is setup in the common virtual room where all attendees have access on zoom.  You will see up to 49 faces on the screen at the same time. 
• The normal awkwardness in the morning of a mediation is present virtually just as it is in person.  The mediator can control the settings of the joint session much more than the mediator can control in-person attendees through the use of the mute button and other features.  
• The ease of presenting a powerpoint or documents is simple on zoom.  Each attendee has the ability to share her screen to show documents and walk through a presentation.  For document-heavy construction cases, no longer do you need to bring 5 bankers boxes with you.  You can rely upon what is in your network.  
• You do lose something by not being in a room together, but many of the non-verbal cues can also be delivered via video-conference if attendees have their videos active.  If the video is not active, then there is a downside because you have no way of really knowing if your adverse party is paying attention or not.  

Caucus / Breakout Time: After the joint session breaks, the mediator shows each party to their respective caucus room.  This is typically a smaller conference room where the parties wait for the mediator to come to them to talk about the matter.  There is often substantial downtime.  It is difficult to remain productive  on other activities (as the client or the attorney) when sharing a small conference room and not knowing when the mediator will knock on the door.

• In a virtual mediation, there are “breakout rooms” for each party.  These are virtual rooms that are limited only to the selected participants of that room.  No other party has the authority or access to enter the room unless the host (someone with the mediator’s office) provides access. 
• These rooms should be used in exactly the same manner as they are used in-person, except that it is easier to work on other matters while in caucus. 
  • This is a double-edged sword though. 
    • There has to be a clear commitment by all attendees to promptly return to the caucus room when the mediator announces she is coming to your room.  This is why mobile phone numbers are requested.  The mediator can setup group texts for each room signaling she is coming back into the breakout room.  This allows the participant to wrap up what they are doing and return to the zoom meeting.  Maintaining this client focus is essential or a mediation will fall apart due to the normal daily demands. 
    • While I recognize it may be challenging to juggle this with precision (mediations are exhausting — particularly the downtime), there can be some savings in attorney/expert time and in business interruption to allow for this increased flexibility.  
• Additional caucus rooms should be created if needed.  This is in lieu of the hallway / kitchenette discussions that inevitably occur between party representatives or counsel during an in-person mediation.  Having 1-2 extra rooms permits the mediator to “put the adjusters in one room” or “allow the principals to talk” without counsel present.  

Memorandum of Understanding:  Congratulations . . . you settled your case!  Now the mediator wants the parties to sign a “memorandum of understanding” — a term sheet of the conditions of settlement.  In particularly complex matters, the mediator may have asked your counsel to draft templates of these already to get a head-start.  In other cases, the mediator takes it on herself to draft the term sheet.  Either way, the goal is to have a signed term sheet by the conclusion of the day.

• Not much is changed here.  In fact, the process is probably streamlined.  Previously, the mediator would have to print a version of the term sheet, email it, or place it on a flash drive.  With a virtual mediation, the document can be shared and edited in real time by the each of the participants.  This dynamic editing removes the complications of looking over each other’s shoulders to read a document at the end of a long day.  There is much more control through using zoom or a similar platform.  
• Electronic signatures may be applied to the document through docusign or a similar provider.  
• The signing and verbal acceptance of the memorandum of understanding may also be recorded by the mediator from the zoom platform. If a settlement had to be enforced, a video would be very persuasive evidence that would not be customarily available in an in-person mediation.  

In looking at each of these stages, there are some advantages and disadvantages associated with virtual mediations.  For the next few weeks during the COVID-19 outbreak, if mediations are going to continue, they will be done virtually.  We will each adapt during this period and likely see opportunities to work with virtual mediation after things return to normal.