With the mediation world now moving to video conferenced mediations, here are some ideas that go beyond using Zoom to shuttle between two party-occupied breakout rooms.
Let’s begin with initial scheduling. After putting my availability calendar online, initial scheduling calls have all but disappeared from my life, because my bookings now come in as “please would you confirm” emails. The law firms now do all the heavy lifting by coordinating both counsel and clients. This absence of an initial scheduling conversation can be a loss in the larger cases. Scheduling or subsequent calls via Zoom can allow for a first test run of both the Zoom platform and the equipment that will be used in the mediation. Where a party or counsel are hesitant to work online, this conversation can be a confidence builder. Such calls can reveal technical issues that need to be fixed before mediation. The mediator can then work with the law firm or client staffs to resolve these issues.
External cameras and microphones are not expensive, and they powerfully enhance the mediation experience. Camera angle is important if counsel and client agree to sit together in the same room. (But not too close!) A good external camera will bring both client and counsel into view while they are seated comfortably apart. Especially today, nobody wants to be physically huddled over a laptop or smartphone camera. Likewise, external microphones can dramatically improve the audio.
Confirmation letters that used to finalize the physical location of the mediation must now spell out the video conferencing platform, the meeting ID, and the protocol that will be used for initiating the conference. Every so often during mediation, a connection to Zoom is lost and it is helpful to use cell phones to bring people back into the mediation, i.e. to help them re-connect visually. For some mediators, it may be worthwhile to ask each participant to provide their cell phone number in advance of the mediation, so that this kind of hiccup can be resolved speedily.
Zoom does have its limits, although I have been impressed with how stable it has been as a platform. Part of pre-mediation planning for very big meetings is to think through the number of participants, and whether this will tax the limits on participant connections or breakout rooms.
Pre-mediation filings with the mediator ought to be done with a view to the technicalities of video conferencing. Substantively, nothing different is needed in confidential statements and other pre-mediation disclosures. But as a practical matter, anything that might normally be shown in hard copy now needs to be scanned and ready for shared screen display. Think through those last-minute items you might want digitized and not abandoned as hard copies in your briefcase.
Whether via email or Dropbox, everything must be digital. If parties are doing a pre-mediation conference with the mediator via Zoom, that pre-mediation conference can be a chance to make sure that everything looks good. Do practice screen sharing! In particularly complex cases, pre-mediation conferences can help each party highlight what they are seeing in expert reports. Likewise, a pre-mediation conference with the experts can help the mediator understand the nuances of the case. These are the last chances to check that the technical aspects of video conferencing are working well.
Because of covid-19, nobody is experiencing actual travel time or costs to go to mediation. Consequently, it may be wise to apply the travel budget to pre-mediation efforts.
By default, Zoom video conferences begin with everyone in a common entrance or reception area. This quickly devolves into a joint session. Typically, this is the place for the mediator’s opening remarks, and for each party to make their positional opening pitch. If parties want preliminary or back-channel conversation, there is a chat function on Zoom. For true offline back-chat there are cell phones, and these work well for folks who have muted Zoom audio to prevent feedback. If it is a big plenary and you need a show of hands for any reason, Zoom has a “raise hand” function.
Every once in a while, I do a high-tension mediation that works more like a masked ball where everyone arrives and leaves in secret. For this, I enable the “waiting room feature,” and I use staggered arrival times (login) so that I bring parties through the reception area unseen by any other participant. It is easiest to bring counsel in first; set up breakout rooms using them as initial room occupants, and then I individually escort their clients through the reception area to their private breakout room. That way there are no unseemly interactions in joint session.
Breakout rooms on Zoom are the beating heart of why mediation works with Zoom. These rooms are limited to participants put there by the mediator. These are how caucuses happen: there is privacy because nobody else has access. However, in their real physical world, participants must remain within earshot of their video conference, so that they are ready and available when the mediator needs them. Cell phones can help to corral folks who may have drifted away into physical space.
The mediator’s kitchen for complex mediations is an extra break-out room, where you can take select participants and put them together to knock sense or otherwise move the case forward. Simply create an extra breakout room for use as a small private setting away from any party’s breakout room (and away from the open main session). In real offices, there is often a kitchen with a Keurig where you can do these side conferences away from the main action. It is a valuable space in the right circumstance.
On Zoom, you do have to supply your own coffee.