Remote Mediation: An Opportunity for Customization

We all fall into routines. In the past, busy lawyers and mediators have been reluctant to engage in too much pre-mediation session process, assuming instead that most mediations will proceed in a predictable fashion. Administrative staff, or perhaps junior lawyers, get the matter on calendar and perform the advance work. Briefing schedules are set, with briefs seldom exchanged, and perhaps there might be brief pre-session calls between counsel and the mediator after completion of the briefing before the day of the session.

Remote mediation has presented an opportunity to rethink the mediation process and brings a welcome change to typical daily patterns. Technology has opened the door to allow us truly to customize each mediation. Participating in a remote mediation requires advance planning about many technical aspects beforehand. Some of these include the following:

• Which videoconferencing platform will be used
• Whether all participants will appear via video, or some will appear in person or by phone
• Processes and procedures to maintain security and provide privacy
• Use of video tools: screen sharing, breakout rooms and chat functions
• How to document the agreement: via  DocuSign or another tool
• General ground rules; e.g., length of sessions, breaks

The mediator and counsel can have a conversation about these things and the substance of the mediation as well. As every dispute has its own unique dynamics, even if the legal issues are routine, an initial, joint conference with the mediator and lead counsel can address such issues as:

• Pre-session discovery/information exchange
• Determining the most useful participants
• The nature of the briefing; i.e., whether briefing should be exchanged or provided only to the mediator confidentially or a mix of both
• Whether a joint session makes sense either at the outset, or perhaps will be needed at a later point during the mediation
• Whether the entire mediation should occur on a single day or in a series of shorter sessions

In addition, remote mediation presents opportunities related to several of the above substantive points. For example, deciding who will participate looks a bit different with remote mediation. For corporate parties, higher-level decision makers may have greater availability if travel is not necessary. For individual litigants, more thought might be given to the inclusion of people who ordinarily might not participate but who might contribute productively to the negotiation process (e.g., family members or other support persons). And the targeted use of joint sessions – either at the outset of a mediation or at other points – may prove to be less uncomfortable on video than when actually sitting in the same room.

After the briefing, but before the session, relatively short videoconferences have become common to ensure that the technology works for all of the participants. Expanding the length of these meetings, perhaps to one hour per side, has many advantages. The mediator can essentially have a brief first caucus to do the following:

• Establish trust and a connection between the mediator and the clients
• Begin to understand the perspectives of each participant
• Process initial reactions to matters revealed by any information exchange and in response to the briefing
• Revisit the organization of the mediation session, further customizing the process to needs of case

For example, in a recent mediation of a single plaintiff, failure to accommodate disability case, during the initial call with counsel both sides thought it was best to defer any joint meeting until late in the mediation process (if at all). During the pre-session videoconferences, it became clear to me that each side had things that needed to be said directly to the other side before productive negotiations could occur. Therefore, counsel and I designed a targeted joint opening session to accomplish this while avoiding the adversarial “opening statements” that had driven the original decision to work mainly in caucus.

When the pandemic made remote mediation the only choice, many were wary. So much of mediation practice is about connection, and in-person interactions are still ideal for that purpose. But a hidden benefit of this disruption has been a renewed focus on planning, which can lead to true customization of each mediation experience. Let’s hope that this customization will remain even after we’re able to return to mediating in person.