Adverse Witness
AW
My experience with Zoom mediations both as a mediator and as an advocate suggest the following are helpful: • Preparation: Determine who is appearing from where in advance. Confirm everyone’s ability to connect and use the platform with the appropriate equipment. Make sure they have a call-in number if they lose Wi-Fi connection. Although mediation is and should be an informal process, there are still formalities that are necessary. It can be hard to keep those formalities in place when someone is appearing at mediation from their favorite chaise lounge by the pool. So, your mediator should collect the particulars of appearances in advance. Drafting a Mediation Summary and/or calling the mediator to discuss your case in advance has always been a good practice. Over Zoom, this preparation is even more important. • Hard Work: Mediation is hardly ever easy. Attorneys and mediators must keep the clients engaged. Encourage the parties to listen while muted and stay in the camera frame, and don’t let them get distracted by things outside the mediation. Oftentimes, they are in the mediation, but alone physically. When possible, have the client appear in their attorney’s office alongside their attorney. It helps maintain focus. Selecting a mediator that is prepared to work as hard as you to find a resolution the parties can agree upon is crucial. That mediator should be prepared to keep everyone focused and respectfully engaged in the process. • Patience: Take your time and work through the issues, both technical and traditional, in a methodical logical manner. Let everyone be heard. Encourage everyone to listen. Remember, it might take a while for the parties to become comfortable with the platform. Parties may become impatient while the mediator is in caucus with the opposition. Attorneys should stay in contact with their clients while the mediator is “in the other room” and keep them engaged in the process. Similarly, mediators should jump back and forth between breakout rooms as often as necessary to keep everyone engaged. I could go and on with the various Zoom mediation “tips.” At the end of the day however, Zoom mediations work well. They work well because mediation works well. As Stephen Covey famously wrote, “The main thing is to keep the main thing the main thing.” In other words, preparation, hard work, and patience will generally lead to certainty and a self- determined outcome, which is almost always preferable to the alternative. This remains true even when appearing by Zoom.
September 2020 Vol. 192
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