Is Virtual Mediation a Real Alternative?
If you had asked me about virtual mediation as recently as a month ago my answer would have been categorical – I would have said that it would not be possible to conduct an effective mediation virtually.
I was not a fan of technology and had managed to practice law for more than 35 years thinking that zoom was just a word that meant going fast.
So much has changed in the past month. All of the mediations and arbitrations that I had scheduled after March 13, 2020 were initially postponed and then, when we realized that COVID-19 was going to cause more than a week or two of delay, we were forced to explore options.
And so I found myself agreeing to conduct my first virtual mediation without really knowing how I was going to make it happen.
The first thing I needed was access to virtual meeting rooms. I discovered that the Ontario Bar Association provides virtual meeting rooms, through Zoom, to all members, free of charge. More importantly from my perspective, they also provide technical assistance. There is no limit on the length of the meetings or the number of participants.
I e-mailed Erinn at the OBA and scheduled the mediation. The date and time were confirmed by way of e-mail from Erinn that included the sign-on information and instructions. I simply forwarded Erinn’s e-mail to the lawyers with the request that they forward it on to their clients.
The day before the mediation was scheduled to take place, I received a telephone call from Dave, the Zoom technical assistant at the OBA. He was checking in to see if I was familiar with Zoom and to find out how many participants I was expecting and what was required in the way of breakout rooms. After the call, he sent me a short instructional video on the use of Zoom and specifically how to move between breakout rooms. This was helpful and reassuring.
On the day of the mediation, Dave logged on and was available at the beginning of the mediation to help the parties, their lawyers and me – get logged into the meeting. There were a total of 6 participants in the mediation, all in different geographic locations. Once everyone was logged on, Dave set up the breakout rooms and then exited, leaving me to ‘host’ the meeting. Dave remained available throughout the day if he was needed to provide further technical assistance.
The mediation itself ran pretty much as it would have had we been there in person. We had an initial discussion in the main meeting room. As is the usual case, it was agreed that the mediation would be a closed mediation. In addition, given that we were all new to the idea of virtual mediation, each of the lawyers gave their undertaking that if there was any glitch in the technology that resulted in them overhearing something that they should not, they would immediately alert me. This proved an unnecessary precaution in this case as we did not experience any such glitches. The parties and their lawyers moved into the break out rooms. I was able to move smoothly between the main meeting room and the breakout rooms with the click of a mouse.
We worked hard for almost 8 hours and at the end of the day the parties were able to reach a tentative settlement. Although I think it might have taken a bit less time if we had been meeting in person, in most other respects the virtual mediation was very similar to an in-person mediation.
We did learn a few things over the course of the day:
- We used cell phones so that counsel in each of the breakout rooms could call or text me when they had completed private discussions with their clients and were ready to respond to a proposal or offer from the other side.
- When I was in discussion with one party and their lawyer – they used texting as a means to exchange comments that they did not want to share with me. This was equivalent to the exchange of notes that sometimes happens in a live mediation. Other options to enable communication between lawyer and client in this situation would be to use e-mail on a separate screen or set up a shared document in Google that the lawyer and client can use to exchange notes.
- As the mediator, I needed to get up and walk around the office from time to time. It is more tiring to focus on the screen for hours at a time, without any break than it is to meet in person. So although I was not physically walking from breakout room to breakout room I still got up and walked around a bit between sessions in the breakout rooms.
- For future virtual mediations I will ensure that I have two screens so that I can use a separate screen to do calculations and access documents. I was able to do this on my single screen but with some difficulty.
- I had booked the meeting to end at 5 pm. As so often happens in mediation, we went longer than anticipated. I was able to text Dave and extend the time for the meeting but it would have been better to have booked more time than was needed and that is what I will do next time.
I am not a complete convert. I think I will always prefer face-to-face meetings over virtual meetings, but given the challenges presented by social distancing and COVID-19, virtual mediation is an entirely viable alternative.