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Posted on April 30, 2020 by James Stensel

In the shadow of COVID-19, change in the way that lawyers resolve cases has become a necessity. In the area of Family Law, and in divorce cases, social distancing and quarantine have altered the tools used to assist parties with their disputes. Pre-pandemic, more than 90 percent of divorce cases settled prior to trial. With most courts in emergency mode, trials continued for months, and judicial resources severely limited, the need for post-pandemic settlement is even greater.

Historically, in-person mediation has been the best tool for resolving disputes, especially when the issues are personal and life changing and the act of compromise requires personal investment and a feeling of trust. At present, however, that just simply is not an option. In response, mediators and arbitrators have pivoted their practices and are continuing to provide the same expert guidance in the virtual world. As you prepare to address your case in a virtual divorce mediation, the following are some pro tips for attorneys and clients to ensure that they are prepared for the best virtual mediation possible:

1. Appearance. Optimize your professional online appearance based on dress, lighting, and background. Invest in good lighting so that you can see and be seen. Change your background or clear your desk. If you are working on several cases in one space, opting for a background that conceals your environment will help insulate a potential breach of confidentiality. Make sure you are in an “Interruption Free Zone”, silence your notifications and ringer on your device, and ensure that your client does the same for mediation.
2. Technology. Your mediator will usually dictate the video conference platform (e.g., Zoom, Teams, WebEx). Invest in a good webcam which provides full HP 1080p video calls. Stress test your bandwidth and ensure a strong internet connection. Select a mediator with experience in video conferencing to support an uninterrupted day, including moderators. Practice connecting with your client and any third parties who will be present, prior to the mediation to ensure a smooth process. Practice sharing documents for review. Double check the time-zones for all participants.
3. Pre-Mediation Submissions. Prior to your mediation date, ensure that you provide the mediator with the materials you want them to review, including in electronic format, as needed. Have your materials saved, organized, and readily accessible for efficiency during the mediation, as well. Any of the online secure file sharing platforms are ideal for virtual mediation. Make sure that for any documents or materials that are not to be shared, your mediator is informed and the documents are appropriately labeled.
4. During Mediation. Mute your audio when not speaking or when having privileged conversations. Consider connecting with your client on a separate device or platform during mediation to provide for one-on-one private discussions. Consider utilizing something like Zoom’s “breakout rooms” for private discussions as well. Document progress as milestones or signposts in the mediation journey, as well as client consent when making offers that can be binding. Ensure that offers are saved and readily accessible to your client during mediation.
5. Client Assistance. Prepare your client for the virtual mediation. Consider a brief bullet point outline to keep your client focused on the scope and as something you can utilize for recall during the day. Develop a plan for the emotion and how to address crises and breakdown. Make sure your client understands the mechanics of the day.

Other Tips

1. Signing. Ensure that you or your mediator have the software necessary to get signatures from all parties when agreements are reached during the mediation (ex. DocuSign).
2. Confidentiality. On a platform such as Zoom, participants will always be notified if a meeting is being recorded and that cannot be disable. Make sure you understand the privacy and confidential settings on the platform and their optimal settings. Make sure your client understands the rules when it comes to recording as well.
3. Password Protection. “Zoombombing” is the unwanted intrusion by a third-party into a video conference call, which causes disruption. To avoid unwanted visitors, consider using waiting rooms, passwords, locking the meeting, “join by domain,” and any other features offered by a particular platform.
4. Plan B. If there are insurmountable difficulties with a platform be prepared ahead of time to switch to another platform and be familiar with it. Make sure you have direct contact information in case anyone “falls off” the video and cannot get back on. Plan for the unexpected. If you have a video failure on your end, you can call the mediator in order to join the conference solely via phone with no video. If there is a total failure of the video conference, provide your conferencing number and go to a traditional audio call.

As virtual mediation continues to be on the rise and more prevalent, it is almost a certainty that this process will continue to be vital and that these tips will be invaluable during that process.

If you have any questions, please contact James Stensel at stensel@lasher.com.