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Mediation during the COVID-19 outbreak

Ryan Hamilton is the president of Resolute Systems LLC.

Ryan Hamilton is the president of Resolute Systems LLC. He can be reached 1-800-776-6060, Ext. 124 or at RHamilton@resolutesystems.com.

Q:  How did the COVID-19 outbreak initially affect mediations you had scheduled?

A:  In the first few weeks of the outbreak, we were able to convert the vast majority of the mediations that were scheduled to either telephone or video mediations, both in Wisconsin and across the United States. We had very few requests for continuances. The initial preference among attorneys and their clients was to convert face-to-face mediations to telephone mediations. We suspect that the comfort level with teleconferencing, coupled with the immediate need to complete scheduled mediations in the same week people were first working fro home was the primary reason for this.

Q:  Have video mediations increased since then?

A:  Yes. Dramatically. We’d estimate that 90%-plus of the mediations we are now scheduling have been set as video mediations (with the option for a live mediation if the landscape has changed by that mediation date).  We are sill scheduling phone mediations if the parties prefer that method.

Q:  Are video mediations effective? One of the traditional strengths of mediation is the ability of the mediator to size up the parties in person and speak with the parties and attorneys face-to-face.

A:  Video mediations are proving very effective. We have seen similar results in Wisconsin and nationally when compared to live mediations. Whether a mediation is taking place in person, by video or by phone, the advantages of getting a civil dispute resolved remain the same. The same dynamics, cost and risk considerations, as well as the desire to move beyond the dispute remain. It is not realistic to put dispute resolution on hold until parties can again meet in person, because we don’t know when that will be. In the meantime, video mediation offers a viable option to attorneys and their clients who want to continue to resolve civil disputes.

Q:  How have you been helping mediators and attorneys use video mediation?

A:  Resolute has been sponsoring video mediation training webinars for both our clients and mediators.  We have trained attorneys and mediators in Wisconsin and across the United States. We also provide training to law firms.

Q:  Have your mediators offered any tips for increasing the success of video mediations?

A:  Yes. Judge Richard Sankovitz suggests:

“It might seem uncomfortable at first, but it pays to get close to your camera, so your face fills most of the screen that the others are viewing. Video is a substitute for being in person, but only to the degree it replicates what you can accomplish in person. In person, the visual cues the participants pick up from the mediator’s face — about your patience, your encouragement, your empathy, that raised eyebrow — those cues won’t come across if you are too far from the camera.”

Judge David Jones said the parties and the mediator need to account for potential lag time with the video connections:

“During a video mediation, you need to slow down and make sure you’re not talking over people. This can easily happen if there is a delay in the video. If you’re dealing with more than one person in private the breakout room, you also need to make sure that you’re hearing from all the participants. Allow enough time before responding to make sure everyone in the room has a chance to speak.”

Q:  What video platforms are you using?

A:  We are using eMediate, which is a video mediation service that Resolute Systems designed specifically for video mediations.  We are also using the Zoom platform when requested.

Q:  Tell us about eMediate?

A:  eMediate is an account driven video mediation service. It is extremely user friendly, particularly for mediators and attorneys who are not as comfortable with technology. Unlike other meeting platforms, eMediate was designed solely for mediations. It allows parties to meet in a joint session, and then move to virtual private caucus rooms where the mediator can meet with the parties privately. The mediator can also share documents with the parties as well as a settlement agreement so the parties can consummate a resolution before the mediation adjourns.

Q:  There have been security concerns with video mediation. What precautions has eMediate taken to remain secure during the mediation process?

A:  eMediation is an account-driven service meaning all participants in the mediation must have an eMediate account to log into the video session. Each account is unique so multiple people cannot log on using one account.  The mediator invites participants to the mediation session. Parties may only attend mediations that they have been invited to.

Q:  If your clients elect to use Zoom, how are you making sure that mediation is secure?

A: If clients want to use Zoom, Resolute is following strict protocol to enforce security. Some of the security concerns we are hearing about Zoom are because people aren’t following security protocols. First, Resolute is scheduling each mediation separate and apart from any other mediation. This creates a unique 9 Digit Meeting ID in Zoom. Resolute sends only the participating parties of that case the Meeting ID.  Second, each separate mediation also creates unique dial-in numbers, which Resolute provides to the participants.  Accordingly, participants in one mediation cannot enter the hearing room of another case. Third, as additional security, a Meeting Password is required to enter the mediation along with the Meeting ID.  There are additional features we require the mediator to use such as always using the waiting room feature, controlling screen share, etc.  As such, the mediator has complete control over the conference.

Q:  When parties are able to meet again in person for mediations, what role do you anticipate video mediations playing in the future?

A: Video Mediations will continue to be used going forward. There are many situations where some parties are unable to travel to mediations from out of town or out of state. Some people may be attending mediation in person, with some participating by video.

One of our mediators has been mediating mass tort litigation, with the lawyers and mediator traveling all over the U.S. Since the outbreak, this mediator has mediated two of these cases, all with lawyers from different states, successfully by video. Video mediation is perfect for these types of cases.

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