The spread of COVID-19 across the globe has, in only a short period of time, irrevocably changed the practice of law. For the first time, the legal profession has overwhelmingly embraced virtual platforms for all aspects of practice, including hearings, status conferences, depositions and mediation. Even for the most seasoned counsel, mastering the ability to communicate with confidence on a remote platform has never been more critical.

Conducting a remote mediation may not be intuitive at first, but with a bit of planning, it is possible to achieve the same results for your client—or even better—as with a traditional in-person mediation. Thus far, seasoned and high-profile mediators have expressed enthusiasm regarding the use of remote mediation tools. In fact, mediators have reported that in many instances, they find remote mediations to be more effective and successful than in-person mediations. We consulted with Judge Diane Welsh and Jerry Roscoe, JAMS mediators who now have extensive experience conducting mediations by Zoom, to learn their top "dos and don'ts" for counsel during a remote mediation.

• Do explain the benefits of remote mediation to your client. Unlike conducting an in-person mediation, clients no longer have to spend time and resources traveling to participate in mediation. Rather, they can attend mediation from the comfort of their own homes and, during downtime, attend to other business. Moreover, Welsh has noted that in certain cases where tension is high between the parties or cases involving vulnerable individuals, a video format may allay tensions and make the remote experience more effective for the parties involved.
• Do consider logistical concerns in advance of the mediation. By way of example: |
  • Discuss with your client in advance how you plan to "sidebar" throughout the mediation. (You might consider using your computer audio to participate in the Zoom meeting, then mute yourself and use your cellphone to privately converse with your client.) Be sure that your client is thoroughly prepared regarding the logistical plans, and inform your mediator of your intentions so that she is informed and can advise if your plans conflict with her mediation policies in any way. According to Roscoe, "one of the best things an advocate can do is a 'dry run' with the client the evening before a mediation. This is a great way to show your client your expertise while preventing any last minute kinks in the process. There may be instances where clients do not have a computer or smartphone. You do not want to learn this five minutes before a virtual session begins."
  • Confirm with your client whether she will need to be in contact with any internal stakeholders during the mediation in order to discuss settlement authority. If so, your client should obtain their cellphone numbers in advance and prepare them for the possibility that she may contact them. This will ensure that the internal stakeholders—who may be working a nontraditional schedule at the moment to accommodate care-giving needs—are available when needed to discuss settlement authority or any other relevant matters.
  • Plan in advance whether you will need to share any documents with opposing counsel, the mediator or your client during the mediation. If you intend to use documents during the mediation, you should have the files ready on your computer and should discuss with all parties in advance how you intend to share them. You might consider screen-sharing on your conferencing application, emailing, or uploading them to a cloud-based document sharing site.
• Don't sit in bad lighting. Eye contact and human connection are critical to achieving results during a mediation, and natural lighting that mimics the appearance of being in person will help. For this reason, video mediations are significantly preferable to phone mediations, according to Welsh, who notes that it is easier to hold the parties' attention and reach a meeting of the minds on video than by phone.
• Do be careful not to overshare when screen sharing with opposing counsel or the mediator. Inadvertently sharing privileged or confidential information may create waiver or attorney ethics issues. Practice how to screen share in advance of your call in order to ensure that you know which parts of your screen will show to others.
• Don't forget to mute yourself when you are not speaking, so as to avoid unprofessional and disruptive background noise. Keeping yourself on mute as a default also avoids the possibility of accidentally revealing a private sidebar conversation with your client conducted by cellphone to opposing counsel and the mediator. According to Roscoe, "speaker phones can present an issue as well. They may broadcast private conversations, create feedback, and amplify background noises such as rustling papers or unanticipated activities in your virtual office."
• Do consider how your tried-and-true mediation tactics will translate to a virtual platform. For example, if you prefer to begin with an impassioned opening statement, consider methods to convey that same passion through a virtual platform. If you like to have a casual sidebar with opposing counsel in line for lunch, brainstorm ways to achieve that same result. If you rely on the use of documents, prepare your method of sharing them in advance. According to Roscoe, "screen sharing is a very effective way to make presentations. In fact, it may be better than the in-person alternative, as parties do not have to strain to see a presentation that is projected on a screen placed at the end of a long conference table."
• Don't forget to act professional. Although you are at home, you are still representing your client and your firm when you attend a mediation. Wear professional clothing, and be sure to sit in an appropriate location of your home, rather than lying in bed or lounging on your couch. Similarly, be sure your client understands that attending a remote mediation in pajamas is unacceptable! Any deviation from typical professional standards is as disrespectful to your mediator as it would be at an in-person mediation. According to Roscoe, "while it may be tempting to appear in a comfortable flannel shirt, you may be assured that other parties are commenting offline when counsel wears less than professional attire."
• Do maintain your sense of humor. When all the parties are participating in the mediation from their homes, there are bound to be interruptions. Be graceful in your response to any mishaps that will inevitably occur—especially with respect to interruptions from family members and pets. "Animals always seem to be welcome. A dog or cat on the screen is a good way to break up some of the tension," added Roscoe.
• Do continue to maintain strong ethical standards for yourself. Practicing law remotely does not alter the obligations that we owe to our clients or to the profession.

With some creative alterations to your approach, and a proactive plan in place, you can provide effective counsel to your clients and successfully conduct mediations remotely. Do not delay mastering these new skills—the sooner you transition your practice to remote platforms, the better you will be able to serve your clients now and in years to come. Welsh predicts, "Even when we get past this crisis completely, virtual mediations will be with us in some form forever, especially in light of the tremendous success that we have had settling cases in a virtual format. My message to you is to give virtual mediation a try. There's no risk. It's not binding. Give it your very best effort as you have always done the old tried-and-true in-person way. If not now, when?"

Sara A. Begley is a partner in Holland & Knight's Philadelphia office. She handles high-stakes matters for corporate employers. Her practice is diverse and includes a wide scope of employment litigation, including claims of discrimination, retaliation, sexual harassment and Sarbanes-Oxley and state law whistleblower claims.