IT’S A ZOOM, ZOOM, ZOOM WORLD!

No doubt video improves the ability to communicate in the negotiation process whether in mediation or with direct negotiations. Video court proceedings have successfully emerged as a productive and efficient way of handling civil and even criminal court proceedings. And in my view, they have,  and will, improve our ability to mediate by providing a more efficient and less costly way of resolving cases. Client, counsel, insurance representatives, and even witnesses (who can be used in mediations more with remote appearances) will not need to travel for mediations, which will save time and money.  Thus, the remote mediation process will become the primary means of mediating cases, particularly where the parties are at different locations. Even when they are not, the remote process avoids travel  of short range.  The convenience of mediating remotely likely will be seen ss efficient in even in the circumstances of those who are relatively close by.

         The question, aside from how remote proceedings will affect other aspects of the civil and criminal practice, is:  Does the advent of these remote proceedings (“The Zoom Mediation”) a positive or a negative?  In my view this is an overwhelming positive, with some limitations which we discuss in this Chapter.[1]  Yet,  the “jury is out” as to how these proceedings will be conducted in the future. That is, we need to learn by “trial and error” and experimentation to fashion a set of guidelines for how we can best utilize this process to achieve a successful result for our clients.

         Those advocating this approach may also have to overcome the reluctance of opposing counsel and their clients to the virtual process.  The events post COVID-19 should assist those advocating the virtual process for mediation given the new experience of many who now know more about how this works. This also may condition many of us to not being in the physical presence of those who are involved in the case but are now more acquainted with “getting to know you” through the virtual reality approach. It is different but it may be at least the same as the personal appearance.  Indeed in many mediations there is no joint session and the mediator works “the rooms” so the parties are physically separated anyway.  .”

         In short, while the jury is out on how this will all unfold, my prediction is that virtual mediations will be an important part – if not not a preferred choice — of the choices that will be available in the dispute resolution process,  Indeed, it may be a very welcome and even a preferred alternative for resolving many disputes.  Thus, we need to see how the remote process affects settlement and in particular the mediation process.

         As the mediation process has evolved, it is well suited to the virtual or remote process. That is what usually occurs anyway. In the usually circumstance of a mediation, we arrive at a location and are sent to our respective “rooms” to await further developments.  Many times there is no joint session beforehand – or at all. The mediator does all the work going back and forth between or among the parties in separate caucus sessions.  Even if there is a joint session, it can be done by bringing the parties and counsel into the “room” for a joint session.  From this perspective a remote process does not seem to be an impediment to the mediation process.

         The concept of virtual attendance may pose some psychological hurdles for those who are more traditional and believe that cases cannot settle without personal attendance.  In my experience, both in the longer and shorter term (after the Pandemic), this reluctance has diminished with counsel.  Some may be intimidated by the technical process, but they should not.  The various video remote platforms are easy to use and reliable. Further, most mediation services and regular mediators have worked through any glitches and are prepared to offer easy to use platforms for remote mediations.

         As the mediation process has evolved, it is well suited to the virtual or remote process. That is what usually occurs anyway. In the usually circumstance of a mediation, we arrive at a location and are sent to our respective “rooms” to await further developments.  Many times there is no joint session beforehand – or at all. The mediator does all the work going back and forth between or among the parties in separate caucus sessions.  Even if there is a joint session, it can be done by bringing the parties and counsel into the “room” for a joint session.  From this perspective a remote process does not seem to be an impediment to the mediation process.

         So, my point is: What’s the big deal?  How does the remote process differ in any significant respect?  Indeed, remote mediations may very well become the preferred process for mediating because of its convenience. 

So — Let’s take advantage of this remote process and get to mediating.

[1] Reed and Alder, “Zoom Courts Will Stick Around As Virus Forces Seismic Change,” U.S. Law Week, July 30, 2020, https://news,bloomberglaw.com/us-law-week/zoom-courts-will-stick-around-as -virus-forces-seismic-change. There are many articles on the Internet about “Zoom” mediations [remember there are other technical formats for remote mediations but “Zoom Mediations” seems to have become a generic phrase for the process]. There are excellent online resources useful for such training. See, e.g., 

 https://www.milesmediation.com/videos/how-to-conduct-virtual-mediations/  

https://support.zoom.us/hc/en-us/articles/206618765-Zoom-video-tutorials

https://www.youtube.com/watch?v=QOUwumKCW7M

https://www.youtube.com/watch?v=FnFSBjFvK2o

https://www.youtube.com/watch?v=bTSJ0YDoF7o.

See also, https://www.jamsadr.com/online


[1] Taken form “It’s a Mad, Mad, Mad World,” T’S A MAD, MAD, MAD, MAD WORLD  From the film “It’s A Mad, Mad, Mad, Mad World” (1963)  (Ernest Gold / Mack David).  https://lyricsplayground.com/alpha/songs/i/itsamadmadmadmadworld.html

This short article is taken from a new Chapter, “Handling Remote Mediations Pre and Post COVID-19” from Mr. Kornblum’s book, “Negotiating and Settling Tort Cases: Reaching the Settlement” published by Thomason Reuters , publishing Company.  the Fifth Edition of this book will be released later this year.