Five Do’s and Don’ts for an Effective Virtual Mediation

With shelter-in-place orders in effect in almost every state in the country, videoconferences are now the norm for conducting everyday business. Over the last several weeks, Foley attorneys have completed a number of virtual mediations and have come away impressed—and somewhat surprised—by the efficacy of virtual mediation. Contrary to the common perception that all parties need to be in the same location so that they can be “ground-down” by being confined in a conference room for long hours, our experience suggests that mediations done by video platforms can be successful. 

Here are five do’s and don’ts for an effective virtual mediation. 

1.  Do choose a mediator who is comfortable with the technology. 

Choosing a mediation company familiar with the virtual platform you will use is a necessity. This is make or break – you do not want a mediator who is not experienced or comfortable with using the technology.  Ask your mediator if he or she has already performed a “dry run” using the chosen platform to ensure he or she is adept at establishing each of the virtual rooms – whether joint or breakout – that will be utilized and who understands how to move the participants between them. 

2.  Do maintain confidentiality and privilege. 

First, you should be aware that there are security and confidentiality risks associated with using videoconferencing technology.  There have been many highly publicized incidents recently relating to the security of certain video conferencing platforms.  Lawyers should consider enterprise solutions (e.g. Skype, Teams, or WebEx) for meetings discussing confidential or sensitive information. More generally, before proceeding with a video mediation you should assess the security and confidentiality risks of doing so.

Virtual conferencing platforms allow for each side to have a breakout room, as is typical at in-person mediations. Most platforms allow users to view a list of everyone who is in the room, so you can ensure that everyone who should be attending is present and no one is mistakenly in the wrong room. 

Note that some platforms provide a chat function within each room, but the entire chat log is often provided to the mediator at the end of the session, so privileged or confidential conversations should not be conducted via the chat function. As a best practice, any sensitive conversations should be conducted via email, text, or audio on a separate device, rather than via the videoconference platform. 

Also, be aware that, as the “host,” your mediator can appear in your room without warning. Most platforms have a “help” button that allows you to call for the mediator to return to your room when you are ready. In our experience, if asked, most mediators will wait to be called back in rather than arriving unannounced. We suggest discussing and agreeing on a procedure with your mediator at the outset. 

3.  Don’t expect a lot of downtime. 

Virtual mediation is surprisingly similar to in-person mediation, with the mediator shuttling back and forth between breakout rooms and, potentially, pulling all the parties together into joint sessions. Often the benefit of in-person mediation is that the long day and time spent working on the key issues while separating the parties creates momentum toward finding a settlement. In our experience, virtual mediation can also create that effect.  However, since mediation is often unpredictable, it is always wise to agree in advance on the length of breaks for lunch and/or dinner.  

4.  Do familiarize yourself with the platform before the mediation. 

As a best practice, everyone who plans to attend the mediation should take 15-30 minutes in advance of the mediation to launch the platform, create an account if necessary, and become familiar with the basic features and functionalities – that way, during the mediation, the focus remains on the issues to be mediated and not questions of connectivity, how to unmute yourself, or how to call the mediator back into your room.  Like everything else, preparation is key and you don’t want to be learning on the fly.

5.  Do avoid technology pitfalls. 

• Before the mediation, check the speed of your internet connection using a “speed test” website that can be found by searching the internet. For a good connection, you will need a speed of at least 40 Mbps. If you don’t have sufficient bandwidth, you can call in from a cell phone or land line rather than using the internet audio option, but note that you will need to stay on that call for the duration of the mediation. 
  
  
• To avoid audio signal degradation and reduce background noise, ask attendees who are not speaking to mute their lines. 
  
  
• For best audio quality and to make sure other attendees can hear you, use earphones rather than the microphone on your laptop, tablet, or smartphone.
  
  
• Consider using a separate laptop or tablet to connect to the platform, if possible, to free up access to—and the processing capacity of—your primary work laptop during the mediation. 
  
  
• If you prefer not to provide live video of yourself during the mediation, consider uploading a professional headshot as your avatar instead. Alternatively, some platforms allow you to choose a virtual background for your video feed so that the room behind you is not visible to the other attendees. 

For more information about this guidance, please contact your Foley relationship partner.  For additional web-based resources available to assist you in monitoring the spread of the coronavirus on a global basis, you may wish to visit the CDC and the World Health Organization. 

Foley has created a multi-disciplinary and multi-jurisdictional team, which has prepared a wealth of topical client resources and is prepared to help our clients meet the legal and business challenges that the coronavirus outbreak is creating for stakeholders across a range of industries. Click here for Foley’s Coronavirus Resource Center to stay apprised of relevant developments, insights and resources to support your business during this challenging time. To receive this content directly in your inbox, click here and submit the form.