April 1st, 2020 by Gillian M. Dougans

A mediation is a negotiation that is assisted by a mediator. Mediators do not make decisions but they help the parties negotiate by facilitating the discussion in joint sessions and by meeting with the parties separately to review risk and opportunities for resolution.

Are remote mediations as good as in person mediations? Yes, no and sometimes! As a mediator I usually recommend in-person mediations. The level of engagement and commitment to the process is usually higher when everyone is “in the same room” or “at the table”. However, I have seen many disputes resolved through remote mediation. In situations where there is a high level of conflict and anxiety remote mediation can provide a useful buffer and allow the parties to focus on “the problem” and not “the person”. Until the COVID-19 restrictions are lifted we cannot hold in person mediations. Remote mediations are a good option.

I will use Zoom here but there are other video conferencing platforms that work and are very similar.

What does a remote mediation look like? You would prepare for it in the same way you would prepare for an in-person mediation. If you have a lawyer then you would prepare over the phone. You or your lawyer would draft a mediation brief setting out the issues and how you want to resolve them. That is sent to the other parties and to the mediator. Each person needs to have a computer with a camera and microphone. The mediator will send the parties a link to the platform such as Zoom. Zoom can be tested in advance and I highly recommend that if you have never used it. Get used to the features that you will need such as the mute button so that background noises are not overheard; Gallery View that lets you see a thumbnail of all the participants or Speaker View that enlarges the person speaking to full screen; the chat feature to send a message to some or all of the participants; and screen share to look at a document. Here’s an advantage over an in-person mediation: the mediator can mute participants so that only one person can talk at a time!

Where to hold a remote mediation? You will probably be at home. Chose a quiet location with a neutral background (people can see what is behind you so remove anything personal or confidential). Dress as if you were attending in-person. The mediation will start with a joint session, where everyone is present and can hear everything. The mediator will make some opening remarks and review the basics of using Zoom. Then the parties will be invited to give opening statements and ask questions. The mediator will then break the parties up in to separate groups. You and your lawyer can confer and the mediator can visit with you privately. This is called a caucus. When the parties are ready to make offers they can hold another joint session or they can have the mediator convey the offer to the other side. This is the same as an in-person mediation.

The mediation will end when the parties reach an agreement and the mediator will draft the minutes of settlement that can be emailed to the parties for approval. If no agreement is reached the parties can decide to continue the mediation at another time, to continue to negotiate after the mediation or to continue with the litigation process.

If you are hesitating about remote mediation because it feels beyond your IT skills you will be pleasantly surprised how simple it is. You will quickly become engaged and forget that you are not all in the same room.

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