~by Joseph J. Sullivan, Sullivan Mediations
Video conferencing quickly has become a popular tool to allow lawyers to keep practicing under the current health crisis, COVID-19. It has also assisted me to continue to mediate with excellent results. Surprisingly, the loss of the “face to face“ encounter with the party opposite has not interfered with the process much at all.
Several video conferencing programs currently exist for business: Microsoft [MS] Teams, Cisco Webex and Zoom, with other tech giants developing more. One of these programs experienced serious privacy and security issues which the company says have been cured. Call me to discuss further. I personally do not know anyone who has had a problem with that particular program.
For the most part, these programs are easy to use and quite logical. One needs a device; usually a laptop with an enabled microphone and camera. They share common features and, as a result, it is easy to use one program one day and another the next. The Microsoft Teams program was included in my Office 365 subscription (by Microsoft), but one does not need to have Office 365 to join a Teams video call.
I set up the video conference by sending a calendar invitation from Outlook to each of the participants. Note that we are collecting personal information here and therefore I make it clear I am collecting the data for the purposes of the mediation only (especially important for non-business participants).
My participants accept the calendar invitation; in the invitation is a prompt to “Join the Video Conference“ to click to that link on the day of the mediation. It works almost exactly like Skype. In fact, in 2017, Skype for Business became MS Teams. If a party is using an Apple device, a free download is necessary to make the programs work – that process is also fast and easy.
For my mediations, I organize a “test call“ a couple of weeks before the mediation to make sure everyone is comfortable with the technology and this has been very useful. Some little glitches can be worked out so that we don’t “burn“ mediation time sorting out a tech issue. Sometimes a participant doesn’t have his or her microphone or camera enabled. Some institutional clients have these disabled and they need their IT Administrator to enable these functions for the mediation. It is of paramount importance to make sure the lawyer and clients are using the device they will use on the day of mediation.
In personal injury cases, sometimes a plaintiff doesn’t have a laptop, tablet or smartphone. I’ve asked plaintiffs to see if a son or daughter can set them up for the mediation day with their laptop. Lawyers and institutional clients are used to the mediation process, computers and laptops, but most times, the average plaintiff is not. It is essential all feel comfortable with the process.
On these test calls, I start off by telling everyone to expect glitches such as momentary video freezes or audio cut-outs; nearly all the time, these clear within 5-10 seconds. It’s critical no one panic that the tech is failing. Now and then, I invite a participant to leave the meeting and rejoin and this clears a hiccup. Occasionally, a plug-in (like an external speaker, headset, second screen) on someone’s laptop can cause an echo or feedback and a simple disconnect cures the problem.
On mediation day, I ask the parties to join at 9:50 a.m. to work out any last-minute bugs. All participants join and we proceed like any other mediation. I make my opening remarks followed by counsel and the parties (if they wish). It’s remarkably similar to an in-person mediation. I then invite the defence lawyers to leave the video conference while I caucus with the plaintiffs.
All of these programs have various types of virtual breakout rooms where the mediator/host can assign one or more groups to their own “room“ while the opposite side caucuses. This is popular with many mediators, but not with me (for now) as I’ve heard stories from counsel on other cases where the defence lawyer “virtually appears“ in the plaintiff room when sensitive topics are discussed, or situations where all the participants can hear private breakout room discussions. These are anecdotal and likely not the program’s fault but OE (operator error).
I like to see parties leave the video call completely and I know they are gone. When I need the others, I email them to rejoin my video conference and I go back and forth with offers and messaging in the usual manner. While a party has dropped off, they can communicate to discuss strategy via cell phone or email and this works well.
I remind the parties that I am not a tech expert and if the rare circumstance arises that they cannot join the video conference, we can use ordinary telephone conference lines to augment the video mediation experience.
Mediations by video conference may be around permanently, at least in part, to avoid long distance travel for some parties as it continues to be effective.