Virtual mediation: Temporary or here to stay? | Stuart Rudner
Friday, May 22, 2020 @ 1:24 PM | By Stuart Rudner
In my view, there is no reason to mindlessly return to in-person mediation in all cases. While some may be better suited to that format, others are not, and it would be wise to consider both options rather than defaulting to “the way we have always done it.” Interestingly, after experiencing a successful mediation via Zoom, several counsel have commented to me that not only would they do it again, they would suggest it even when things are “back to normal.”
The simplest reasons for continuing to use virtual mediations are convenience and cost. It makes little sense to force all parties to gather in one place, particularly when one or more of them will have to travel a significant distance, often at substantial cost. Furthermore, distance is often the reason why the actual decision maker is not physically present; why not have them participate, along with everyone else, by videoconference? This would eliminate the all too frequent situation where negotiations break down when the decision maker is unavailable. Lastly, of course, eliminating the need to travel will make it easier to schedule the hearing, reducing delays in the process.
Another potential advantage of virtual mediation is that, particularly for parties that are not accustomed to litigation, such as plaintiffs in a wrongful dismissal claim, they will be far more comfortable in their own home (or even their lawyer’s office) than in an office tower bustling with activity or a reporter’s office with dozens of strangers around.
The convenience of participating from home can also mean that time restrictions, such as the need to be home for childcare duties, can be accommodated without having to end the hearing when progress is being made.
As effective as virtual mediation can be, there are still some advantages to the traditional format, but these can almost all be addressed. For example, counsel often like to “intercept” the mediator in the hallway and pull them aside for a private chat. That is difficult in Zoom, but it is easy for counsel to call or text the mediator separately and request a private meeting. The use of breakout rooms makes it easy for the mediator to meet with one “side,” a single lawyer, all counsel, or any combination of participants. Furthermore, the mediator can also create a room for counsel to meet without clients (and even without the mediator if they request), and for them to jointly draft the settlement documentation.
Some people have expressed the view that it is more efficient to execute settlement documentation in person. This is an important point, as it is rarely advisable to allow the mediation to end without a signed agreement. While it is possible to distribute the documents by e-mail, have everyone print them, sign them, scan them and return them, this is not only cumbersome, it requires that everyone have access to a printer and scanner (or know how to capture a picture of the signed document and send it), which is not always the case.
I have experimented with various solutions such as Docusign and Hellosign and found that they can be extremely efficient. Once the documentation has been agreed upon, the mediator uploads it, identifies the parties it has to go to, indicates the specific spots where people are to sign, initial, date, or otherwise mark the document, and then the application will distribute it. Each party will see indicators in the document telling them what to do (much like the “Sign Here” flags we are so used to), and they cannot “finish” until they have done so. When everyone has signed, they all receive a PDF copy of the executed document. An audit trail is also created that will confirm who viewed and signed the document, when and where.
One criticism often heard about any virtual hearing is that you cannot “see their face” or read their body language. I fully agree that telephone hearings will not address this concern at all. However, with each person on screen, the mediator can see everyone’s face clearly and observe their demeanour.
Recently, some people have raised concerns about Zoom and security. Many of these concerns have already been addressed, with more changes on the way. However, the risks are minimal, especially when using security settings properly and following best practices. Many courts have started to use Zoom to conduct proceedings; that is a strong indication of the low level of risk. I also note that the traditional form of mediation is hardly foolproof. I have often walked past closed doors where a party is caucusing with counsel and been able to clearly hear their discussions.
Furthermore, if you are concerned about keeping the proceedings confidential, it is much easier to “keep things quiet” if you do not all have to go to a public place where you may be seen by others.
There is no one solution for all situations, but I am hopeful that as things get back to normal, people will continue to use virtual mediations on a regular basis. There is no reason to automatically revert to the way things have always been done.
Stuart Rudner is a leading Canadian employment lawyer and mediator at Rudner Law. He is the author of You’re Fired! Just Cause for Dismissal in Canada. He can be reached at 416-864-8500 or firstname.lastname@example.org.
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