The courts are closed, litigation is at a standstill, and court reporters’ offices are shut. Many litigators have an unexpected amount of free time while at the same time, their clients are anxious to move their cases forward. And the reality is that there is a simple way to do it: Online Dispute Resolution.
While the technology has been around for a while, the need was nowhere near as great as it is now. Previously, most litigators scoffed at the notion that a virtual mediation could be effective, but at the moment, it is the only option and, more importantly, it has proven to be extremely effective.
Zoom makes virtual mediation accessible and effective. Anyone can use it on almost any type of device, and it allows the parties to be separated into breakout rooms, avoiding any awkward or unpleasant encounters. The mediator can control who is in which room and ensure that things progress smoothly. In that way, a virtual mediation is just like a “regular one”; the parties can be in separate rooms and the mediator can go back and forth between them. If the mediator wants to meet only with counsel, or only with certain parties, he can do that too. And although I won’t get as many steps in, I can move between rooms quickly and easily.
Furthermore, a virtual mediation has advantages over in-person mediation. With each person on screen, the mediator can see each person’s face clearly and up close, and can even control the conversation so that people don’t talk over each other.
Unlike a typical mediation, no one gets stuck in traffic, goes to the wrong floor, or has to leave at 3:00 to pick up their kids. On the downside, the food is not as good as it would be if you were at a court reporters’ office.
Like any new system or technology, preparation is critical. I will connect with counsel beforehand and review the mechanics to ensure that they and their clients are comfortable with how things will take place. Ideally, everyone should test their system beforehand. Furthermore, there are considerations that don’t exist in traditional mediations, such as
- Ensuring that you always know who is present: parties should be clearly told that everyone that will be present must be disclosed and should sign a confidentiality agreement
- Making sure that people pay attention: it can be easy to get distracted, and everyone needs to understand the importance of staying involved and focussed (there will be “down-time” when the mediator is in another room, just like in traditional mediations
- Preventing recording: While the ability to record the meeting in Zoom can be turned off, parties should be warned that they are not to use other methods to record, such as their smartphone
- Preparing for technological challenges: Systems go down, WIFI fails, and computers freeze or lag. I will always provide ways to contact me via phone and email in case the connection is interrupted.
Exchanging documents in a virtual mediation is quite easy. People can share their screens if they are so inclined, and parties can virtually mark up a draft, or parties can send drafts via email as we often do when face to face.
Recently, some people have raised concerns about Zoom and security. Many of these concerns have already been addressed, with more changes on the way. However, the risks are minimal, especially by using security settings properly and following best practices. Many courts, including the Ontario Courts, have started to use Zoom to conduct proceedings. That is a strong indication of the low level of risk.
In the current days of self-isolation and social distancing, virtual mediation is the only way to go. I encourage counsel to consider it rather than adjourning scheduled mediations. Furthermore, if a file is languishing or you have unexpected time on your hands, now is a great opportunity to schedule a virtual mediation.
Once things get back to normal, I hope that everyone will see that Virtual Mediations are viable and can be a lot more convenient than having everyone travel to a physical meeting space. Not every case will lend itself to Online Dispute Resolution, but most will.