A number of good things stem from our switch to virtual mediations and arbitrations during the pandemic. One of my favorites is using Zoom (or another online platform) for conference calls in mediations. (I use them as well in arbitrations, but that is a somewhat different story.)
Why do conference calls at all?
I am fortunate to work with a highly competent staff that can schedule sessions and calls, convey the need for pre-mediation memos and invite counsel to email any questions, etc. But I still hold my own conference calls before mediations. There are four main reasons why I prefer to do this.
First, there is business to take care of that I like to do myself, such as arranging submission dates for the pre-mediation memos, explaining why I prefer that the memos be shared and deciding whether or not to have opening statements.
Second, I attempt to set a tone and connect in a way to help counsel (especially those who have not worked with me before) feel comfortable and not hesitate to ask questions.
The call also gives me a chance to see the lawyers involved, which can be helpful. I get a sense, often, of their styles of mediating. It lets me establish how names are pronounced when unclear, and whether “Matthew” prefers to be addressed as “Matt” if we graduate to first names in the course of the call.
Finally, a virtual conference call is more likely to be taken seriously with adequate time budgeted than is a standard phone call. It is less likely to be done on a cell phone while travelling or while multi-tasking. And full attention generally yields a more productive conversation.
How I got started
Last May a colleague proposed that asynchronous virtual sessions might work well for complex cases, avoiding the delays and frustrations of the all-in-one-day model. (See “Virtual Caucuses Can Improve the Mediation Process” by Marc Isserles.)
I thought then, “Why don’t I try virtual conference calls?” I asked the case coordinator whom I work with to tell counsel that we would set up a Zoom call unless one attorney preferred a phone call.
I have made this offer on all of my matters since then and so far no one has asked for the plain vanilla phone call. On a very few occasions, counsel have participated without video: One lost internet service at home in a storm and was working from a motel; another had just finished a run and didn’t want me to see him.
I like the experience of seeing counsel and feel the personal connection is somewhat better. There is no hard evidence, of course, but I think it makes the mediation session begin more positively. There is a little more informality and, perhaps, a bit more trust. My plan is to continue doing virtual conference calls even after we return to working from our main offices.
Plus, it is great to find something positive in our new mode of working.
Nancy Kramer, Esq., is a veteran mediator, arbitrator and facilitator at JAMS. She is known for her aptitude in bridging gaps in communication, identifying obstacles to settlement and pursuing creative solutions to complex issues. Ms. Kramer has mediated more than 650 cases and is available to conduct virtual mediations, arbitrations and other ADR proceedings on Zoom and other online platforms.
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