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Process Planning Is an Essential Prerequisite to Successful Mediation in the Post-COVID-19 Era

In March 2020, mediation in the United States underwent a sea change due to the COVID-19 pandemic. The situation is still evolving, and no one can predict what the future may hold. However, it has become clear that for the foreseeable future, the mediator must pay special attention to the procedures governing the mediation, and he or she must work with the parties to formulate and agree on those procedures in advance.

For most of the past 28 years in which I have practiced as a mediator, my method of preparing for mediation followed a standard and fairly predictable course. I and most like-minded mediators tended to focus on the substantive issues involved in the dispute. My standard practice was to request that the parties submit written memoranda summarizing their respective positions on the factual and legal issues. I also typically conducted private telephone calls with counsel in order to review those issues briefly with them in advance of the mediation. Except for rare occasions, we did not spend a great deal of time working through the procedural issues. We all approached the mediation with a common preconception of how it would be conducted.

Our world changed dramatically in March 2020. In Boston, where my practice is primarily located, we were ordered to shelter in place in an effort to reduce the burgeoning number of COVID-19 cases. It suddenly became impossible to conduct a mediation in person, and I learned on the fly how to conduct a mediation by videoconference using Zoom or one of the other online platforms. Videoconference mediation remains a large part of my mediation practice, and it is likely to remain so for the near future.

By July 2020, the rate of new COVID-19 cases in Massachusetts had slowed to the point where we are now able to engage in a limited reopening of our offices, so long as safety protocols are observed. It is now possible to conduct in-person mediations in Boston, provided that the participants adhere to certain safety protocols, including the requirement that they wear face masks, that we limit the number of persons occupying each room to enable social distancing and that we replace buffet luncheons with individually boxed lunches. For the foreseeable future, mediations can only be conducted either by videoconference or in compliance with social distancing and other safety protocols. The old way of doing business is no longer an option.

I have come to understand that in addition to the traditional pre-mediation activities that he or she undertakes to prepare for the substantive issues involved in a mediation, the mediator must now work with counsel and the parties to formulate and agree on the ground rules for the mediation process itself. The first question to be addressed is whether the mediation will be conducted by videoconference or in person with observance of the safety protocols. If the mediation will be by videoconference, the mediator must ensure that all participants have suitable computer equipment and adequate internet access, that they are comfortable with the measures that have been taken to maintain the confidentiality of the process and that they are sufficiently familiar with the videoconference experience so that they are not distracted from focusing on the substantive issues and engaging in a meaningful negotiation. If an in-person mediation is planned, the mediator must confirm that all participants are comfortable with and will agree to abide by the safety protocols, including the requirement of face masks. If those protocols are not acceptable to one or more of the parties, then the mediator must explore the possibility of other solutions, such as a hybrid process in which some participants attend in person and others participate by videoconference.

My standard practice when scheduling a videoconference mediation is to conduct a brief test session in advance of the mediation with both counsel and their clients. This practice has yielded many benefits. It has enabled us to identify and correct any connectivity and/or technical problems that could potentially bring the videoconference mediation to a standstill. It has also enabled the parties to experience being placed in a virtual breakout room and to have the mediator visit with them.

Whenever I schedule an in-person mediation, I now schedule a pre-mediation conference call with both counsel and clients. The purpose of the call is to address any procedural concerns. This practice has been very helpful in ensuring that the parties feel confident that they can safely engage in the process, that they and their counterparts will agree to abide by all of the required safety protocols and that we will restrict the number of attendees in accordance with the new occupancy limits for our conference rooms.

When preparing for either a videoconference or an in-person mediation, I believe that the mediator must engage with the participants beforehand in dialogue leading to agreement on procedural matters. By personally participating in that discussion, rather than delegating it to an administrative assistant, the mediator can build trust with the parties and convey to them a sense that we are all working together to craft the mediation process best suited to promote resolution of their dispute. I find that the parties appreciate the sense of empowerment that comes from working cooperatively with the mediator and the other party or parties to develop a mutually acceptable mediation process. This practice both enhances the parties’ satisfaction with the process and increases the likelihood of a successful mediation.

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