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Law360 (June 10, 2020, 4:51 PM EDT )
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| Jeff Kichaven |
While I was unquestionably right, my experience and thinking over the last two months convince me I was also dead wrong. I appreciate Law360 giving me the opportunity to explain.
In April, the question in my mind was, "Is online video mediation as good as in-person mediation by the standards of in-person mediation?" In hindsight, this was what we would describe in Yiddish as a klutz kasheh, a blockheaded question. Obviously, by the standards of in-person mediation, an in-person mediation beats all comers. But more than two months on, it's apparent that the question in my mind was the wrong question, and the answer, "Online video mediation is, in general, just not as good," was a tautology.
That's because online video mediation has taken on a life of its own — and because it's here to stay. It is a different organism than in-person mediation. It no longer makes sense to evaluate one by the standards of the other. Online mediation needs to be evaluated on its own merits.
We've faced technological transitions before — and benefited each time. A phone call is different from an in-person conversation; a TV show is different from a radio show; a movie is different from a play. We cannot say the newer technologies are categorically better or worse than their predecessors. Each has its place, each its own virtues. So it is with online mediation. We must therefore ask a more discerning question: Does online mediation have the virtue of providing us a significant opportunity to do quality mediation?
Well, for starters, online mediation is mediation for the foreseeable future. In many cases, personal attendance requires air travel. That's not so easy now. And it's hard to imagine mediating in person with masks, plexiglass shields between us, sitting socially distanced in the corners of conference rooms rather than at the table. Talk about a lack of intimacy. God forbid anyone should cough! We'd all race for the exits. But we wouldn't get very far very fast, because most downtown buildings will allow us into elevators only one or two at a time.
We must therefore consider online mediation a blessing. It's what allows mediation to continue at all.
But here's the critical point: We have the opportunity to shape this new organism of online mediation to provide the highest quality of service, even as we had the opportunity to shape in-person mediation 25 years ago.
Let's not make the same mistakes twice.
In-person mediation started as a rich, complex, nuanced series of curated conversations between the sides designed to maximize self-determination. The approach almost always resulted in settlement. The sides could take pride in those settlements because they created them.
But in-person mediation has largely devolved into a kind of arbitration without due process, where a high-status "mediator" reads briefs, decides where the case should settle and drives the sides toward that single-minded result, with the sides rarely, if ever, meeting face-to-face, or even participating much. Not much for the sides to create, not much in which they can take pride.
Why did we abandon self-determination, direct communication, complexity and nuance? Because direct communication between the sides, in opening joint sessions and otherwise, with lesser-skilled mediators, engendered too much antagonism and made it too hard to settle.
Can we steward online mediation in a different direction? Harness technology to keep the benefits of direct communication and limit its risks? I am convinced we can.
Online mediation is different, just as making a phone call, watching TV or seeing a movie is different from what went before. In online as opposed to in-person mediation, two critical differences are that (1) people are at home and (2) they can turn off their cameras for whatever reason.
Skip the elevator ride. You're at home.
For clients, the elevator ride up to the mediator's office might be one of the worst minute-long experiences of their lives. In that short time, their minds reactivate the awful circumstances that led them to litigation and this scary face-the-music moment of mediation. No wonder they're so easily agitated once seated at your conference table. No wonder lawyers seek to protect those clients from direct communications in joint sessions.
In online mediations, it's all different. There's no elevator ride. There's no car ride or plane trip, either. All your client has to do it put on a clean shirt, comb their hair and sit down at the kitchen table, not your conference table. Your client can glimpse their spouse, roll their eyes at their kids, pet their dog. They're home, in their own comfortable and familiar environments — not on neutral (or even hostile) turf.
Clients may well be less subject to hair-trigger responses in these cozy surroundings. Lawyers may therefore be more willing to have them participate in some direct communication.
Also, I daresay your opposing counsel may be less inclined to inflammatory rhetoric when they're not girded for battle in a law office, but rather are at home themselves, jeans and sneakers below the shirt and tie, spouse and kids within earshot, dog staring at them quizzically wondering what's wrong.
If you can't stand the heat, don't get out of the kitchen. Just turn your camera off.
Many lawyers are just itching to address the other side's client directly. These lawyers think, "Just let them hear our side unvarnished, unfiltered by their own lawyers." The lawyers on the listening side, though, are often cool to the idea. Bad experiences have taught them that their clients can become inflamed, setting the mediation back for hours or causing it to end altogether. In person, not much can mitigate this. It would be too gauche for a client to turn their chair around so that the presenting lawyer cannot see their reactions. Even that might not be enough to quell a client's outrage in a tense, in-person meeting.
In online mediations, this is all different, too. Your client, remember, is in the kitchen. Literally. This comfort zone is itself a buffer against outsized reactions. And, if things seem too hot, your client need not get out of the kitchen. They just need to turn off the camera. Then nobody can see their reaction, and the mediation is more likely to continue intact. These buffers, too, may allow more lawyers and their clients to participate in some direct communication.
If you're as eager as I am to reap all the benefits of this better mediation experience, here's a checklist of things you can do to prepare your clients:
1. Exchange mediation briefs and ask your clients to read them before the mediation. Your clients are less likely to be antagonized by what they hear at the mediation if they've read it before.
2. Make sure your clients have a strong internet signal. An unstable connection leads to awkward starts and stops in the conversation. Sometimes, people get disconnected altogether. It's frustrating and aggravating, and tightly-wound counterparties may even consider it passive-aggressive. Ask your clients to discuss this in advance with the family members with whom they share the signal in our work-from-home era. The mediation day is not the day for the kids to download all 10 seasons of "Friends."
3. Practice, practice, practice. While clients are increasingly familiar with Zoom and other online platforms, they are likely less familiar with how those platforms function in mediation. Practice with them. Practice with the mediator, too. Almost every mediator offers free practice sessions.
4. Dress nicely (at least from the waist up). You want your counterparties to believe you are treating them with respect. That's part of what enables them to make deals with you. So, ask your clients to dress to make them feel respected. And, even if you're in your bedroom because it's the quietest place in the house, or the place where the internet signal is strongest, don't show an unmade bed behind you. Use a virtual background, one that's appropriate for the respectful tone you want to set. The online platforms offer a number of these for free.
5. Prepare a back-channel for client communications. In every mediation, you and your clients will need to communicate in total confidence. You might not feel comfortable with a virtual caucus or breakout room. So, think ahead about how you will have superconfidential conversations with your clients.
Phone calls or texting might work. So might Skype or WhatsApp. You might try Slack or similar platforms for larger groups. You might even want to host a separate meeting on Zoom or a similar platform just for the participants on your side. Whatever the back channel, your client should know how to get your attention confidentially on a moment's notice. Then you can just mute yourself and turn off your video, or walk away from your computer, hear your clients out, and keep them calm.
6. Think about the care and feeding of your clients, literally. Many of us who are unaccustomed to working from home are also unaccustomed to preparing our own lunch. As a long-term downtown lunch diner now working from home, I often find myself scrounging around for leftovers, protein bars, and apples when the clock strikes 12 p.m., and then noshing my way through the rest of the day.
But it's not good. If I don't have a balanced meal, it can affect my mood and my energy. The same can happen to your client, and to you. So, ask your clients to plan ahead for lunch and snacks during what could be a long mediation day. I promise to do the same.
7. Think about signatures. After that long mediation day and an oral "yes," or some other form of virtual handshake, you need to get it in writing and signed, if at all possible, lest the deal evaporate overnight from buyer's or seller's remorse. The share-screen features of many online platforms are excellent for drafting settlement documents efficiently. But what about getting them signed?
Many law firms and businesses use document signing software. Make sure your clients download and become familiar with the document signing software you prefer. There are few better ways to generate antagonism and blow a deal than to be unable to procure your client's signature. Don't let that happen to you.
If we prepare for and manage the online experience correctly, mediators and lawyers can serve your clients better than we have in many years. Yes, the era of video mediation is in fact here. And I for one say, "Hooray!"
Jeff Kichaven is an independent mediator with a nationwide practice. He specializes in insurance, intellectual property and professional liability matters.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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