Online mediation uses widely available and easy-to-use technology to host the mediation online, without the need for all participants to gather in one location. It is not a brand-new invention. Online mediation has been used successfully for several years, beginning well before “social distancing” prevented parties from engaging in face-to-face mediations. The pandemic merely allowed more people to experience the online mediation process first-hand, and has led to a growing recognition that online mediation is an effective alternative to face-to-face mediation.
The Advantages of Online Mediation:
Online mediation offers many advantages over more traditional mediation.
What Types of Controversies are Well-Suited for Online Mediation?
Any conflict can be effectively mediated online. Certain cases, by their nature, seem to be particularly well-suited to an online mediation process.
What’s the Process?
The process for holding a mediation online begins in the same manner as for a face-to-face mediation. Typically, parties or their lawyers first consult the calendar I maintain on my website to see if I am available within a timeframe when all parties will likely be available. They can also call my office and speak with my paralegal, Lori Hester. When a handful of workable dates are in hand, a call is made to schedule a preliminary mediation conference. During the preliminary mediation conference, we confirm the date and manner of the mediation, as well as discuss preliminary steps to overcoming obstacles to discussing resolution. The preliminary conference is followed by the circulation of a mediation agreement sent by letter to counsel or any unrepresented parties.
The mediation agreement includes terms that govern and guide the participants’ online attendance. These terms ensure that the process runs as smoothly as possible and meets all requirements for security and confidentiality.
Prior to the mediation session, the parties submit information to the mediator and prepare to participate online. A checklist for online mediation is circulated. As noted, my office his happy to conduct a “test run” with any participant to ensure they are equipped to participate in the online mediation. Just call or email to set this up.
What to Expect on the Day of the Mediation Session?
The day and time of the Settlement Conference, all participants join the conference by clicking on the link provided. While the link may allow each participant to elect to use their regular browser as the platform for the conference, it is recommended that the participants choose to use the software or application. If it has been downloaded and installed previously, the participants will be able to choose to join using the software or application. If not, there will be an opportunity to download and install the program first.
Once the link is activated, you will have the opportunity to join using your computer’s audio and video. This is the preferred option. You can also test your audio settings as well. If they are not functioning properly, we can troubleshoot. You can also call into the meeting with your mobile or landline phone using the phone number provided. Just enter the meeting number when prompted.
Upon joining the meeting, the participants will be in a “waiting room,” without any other participants. When all or most of the anticipated attendees have joined the waiting room, the mediator will bring all participants into one meeting room. Parties and counsel will be able to see one another if they have their video enabled. If parties choose not to have their video enabled, that is fine, but this joint session is typically very brief – less than five minutes. Brief introductions are made, a discussion of the general outline of the day is provided, and expectations about confidentiality are confirmed.
The participants will then be divided into their respective “rooms.” Parties and their attorneys will be separated from other parties and other attorneys. The mediator will meet in one “room” for a time, and then exit to speak with other parties in their “rooms.” The participants in the room may still speak to one another; all discussions are confidential and secure from the mediator and any other party. Before the mediator enters any room, he will typically text or otherwise communicate with the parties to ensure that it is an appropriate time for the mediator to enter.
The process of meeting with the parties and their counsel continues thereafter. Each mediation is unique, but eventually the process produces a resolution of issues or an understanding of what remains in dispute and must be resolved by other discussions or by a legal trial. The mediator may prepare and circulate through email a written agreement stating the parties’ resolution of the dispute at the conclusion of the mediation. Signatures are obtained by DocuSign or a similarly enforceable electronic signature process.