Author: Kenneth D. Stern
Most Mediators and litigators prefer to mediate in person, rather than by ZOOM. However, I have mediated a number of cases virtually, because one party or attorney is concerned about the risks inherent in an in-person mediation, and you can rest assured that a ZOOM mediation can be just as effective in settling a case. Most experienced Mediators are quite capable of conducting an effective virtual mediation.
With everyone on-screen, you can see the facial expressions, tone of voice, and much of the body language of everyone, and little is lost by mediating virtually.
Even if your client is not present with you in your office, a virtual mediation conference will enable you and your client to have confidential discussions, whereby you and your client can converse without the other side or even the Mediator hearing you.
A virtual mediation conference provides separate breakout rooms, permitting both or all attorney-client pairings to converse in total confidence and to caucus with the Mediator without the other side hearing or seeing you. And of course, joint sessions can be had, with everyone present. In addition, a virtual mediation can greatly reduce the costs of attending an in-person mediation. It eliminates the expense of having clients, insurance adjusters, corporate counsel, and other corporate representatives fly in and generate the costs of airplane fare, hotel lodging, and meals attendant on many in-person mediations.
What are the technical requirements to participate
in a virtual mediation conference?
Don’t worry, the Mediator will do all the work to set up your virtual mediation. In advance of the mediation date, the Mediator will advise you of which breakout room has been assigned to you and your client. (I typically put the Plaintiff and his/her counsel in Breakout Room No.1, the main Defendant and counsel in Breakout Room no. 2, and so on, if there are other parties.) Your Mediator will send you an email containing: (a) a link for you (and your client and any other representatives of your party, to use if they will not be present in your office) to click, to “check in” with ZOOM to join the session; (b) the Meeting ID and the PassCode which you and your client will need to enter to join the session, and (c) an “Activation Code” which you and your client will use to enter the Breakout room assigned to you both.
What if you can’t get sufficient hearing time to resolve objections
so that you can complete discovery before mediation?
Now that our Circuit Judges are resuming non-jury trials, the number of time slots available for hearings on motions will diminish, perhaps almost to the point of evaporating, as our Judges try to reduce the backlog of cases that did not settle at mediation. You have options here, and you may want to use a combination of them. Be creative: try to get agreement on pending motions or on issues therein; try to reduce a long motion so that it can be dealt with at a UMC; and stipulate to matters that are not in serious dispute.
If you have a slew of motions raising objections or discovery issues that have to be ruled upon before you can depose witnesses or the opposing parties, try to get your opposing counsel to agree to using a Special Master; that way, you can arrange to have all discovery issues heard and tentatively ruled upon. The Special Master will send a Report and Recommendations to the Judge, and both parties will have the opportunity to file Exceptions. Usually, these are few, and the Judge can then enter rulings on every discovery issue which was not excepted to; this can save many months of frustration.
In one case in which I served as a Special Master, the Judge had advised the attorneys that it would take 12-14 months to have all the preliminary discovery issues heard and resolved. After receiving and reviewing all the pending motions to compel, objections, assertions of privilege, etc., I then conducted two days of back-to-back hearings, some evidentiary with testimony, and filed a 51-page Report and Recommendations. Only one counsel filed Exceptions, and these were few. The Judge entered her rulings, adopting all of the recommendations that were not objected to, and considering the few others in light of the Exceptions filed. More than a year was saved in resolving all these motions and the issues raised; the expense of holding all hearings before a Special Master, while not small, was far less expensive than 14 months’ worth of hearings would have cost. And the parties could now proceed to take all the depositions which had to await the resolution of these issues.
Corona Virus be Damned: Full speed ahead!
Virtual mediations, like virtual hearings and even virtual nonjury trials, are now a part of the fabric of legal practice. And even if there are no concerns about the virus, virtual mediations are increasingly being used to save the expenses of everyone flying in to attend in person. Don’t hesitate to avail yourself of this worthwhile alternative to in-person mediations.
Kenneth D. Stern is a retired Circuit Judge who served here in the Fifteenth Circuit.
Prior to becoming a Judge, he was a Trial Attorney with the U.S. Department of Justice, and an Assistant U.S. Attorney here in the Southern District of Florida. He then moved to Palm Beach County and practiced both federal and state litigation, before being appointed to the Bench by Governor Jeb Bush. Since his retirement from the Bench, Judge Stern has been serving as a Florida Supreme Court Certified Circuit Mediator, AAA-approved Arbitrator, and Special Master. He can be reached at firstname.lastname@example.org or (561) 901-4968.