Blog

COVID-19 and Virtual Mediations

September 25, 2020 Brandon Rose

The COVID-19 pandemic has made family law attorneys value technology to better serve their clients’ needs. In-person mediations are not always an option, but virtual mediations with video conferencing are the best tool to keep your case moving along. 

Although in-person mediation is a tried and true method of alternative dispute resolution, as states and counties begin relaxing shelter-in-place orders, family law practitioners should assess whether virtual mediation may be a continuing resource, offering flexibility, cost-savings, and client comfort.    

The benefits of virtual mediations:

  • Flexibility
  • Cost-savings
  • Client comfort, if in-person makes the client nervous
  • Little to no travel time
  • Location optional

Virtual mediations also open up possibilities for shorter sessions focusing on discrete issues, which may provide an effective solution in time and expense for determining temporary child and spousal support orders, negotiating parenting plans, or reaching interim property agreements. 

With many clients in need of immediate support or child custody orders, virtual mediations may provide a platform for efficiently resolving these or similar issues with no need to coordinate in-person meetings, even long after the pandemic has receded.   

In-person mediation may sometimes be volatile events, especially in cases with a history of domestic violence. Virtual mediations help reduce client anxiety, or conflict between the parties, simply because parties have no chance of running into each other face-to-face. Using virtual waiting rooms and breakout rooms ensure that participants are always kept in separate video conferences.     

There may however be some drawbacks of virtual mediations:

  • Privacy concerns
  • Inability to connect to high-speed internet affecting quality of mediation
  • Audio feedback or background distractions disrupting proceedings
  • Lack of access to a video conferencing platform (Zoom, Microsoft Teams, WebEx from Cisco, Skype, etc.)
  • Need for advance planning to address lighting, video and microphone quality issues
  • Need for comfort level with video conferencing technology and etiquette

A pre-mediation trial run between the attorney and the client using the proposed service may give the client confidence in his or her ability to use the technology seamlessly on game day. During the trial run, attorneys and clients may practice connecting, enabling and disabling the mute and video functions, and using the chat and screen-sharing features. If the client will be participating from home, and he or she does not have a suitable background environment—or if the client wishes his or her location to remain anonymous—the attorney may help set up an attractive virtual background. 

Without the ability to talk to parties face to face, virtual meetings may limit the ability of the mediator to build rapport, identify common ground, and create compromise. Genuine human interaction is difficult to replicate in a virtual setting. There is a reason people travel hundreds or thousands of miles to meet in person for major negotiations in business, government, and the law.  As mediators gain more practice with virtual mediations, they may develop strategies to help mitigate against some of the medium’s inherent shortcomings.

Here are some basic video conferencing tips you may find useful:

  • Internet speeds of 1.5 to 3 Mbps allow for high-definition video quality 
  • Participants should have at least 600 kbps upload and download speeds 
  • To avoid taxing internet capacity, participants should disable other connected devices on their network during video conferences 
  • Position video lens at eye level. Avoid up-the-nose shots or side angles.     
  • Add a soft light source behind the camera, facing you. A ring light works great.   
  • Backlights, overhead lights, or windows off to the side can cause dark shading on the face 
  • Be cautious of your background. Remove clutter or distractions.  Consider a virtual background.
  • Carve out time for an orientation for all participants to test everyone’s capabilities and discuss how to structure the mediation.  For example: Will there be waiting rooms, breakout rooms, or joint meetings?  Breaks? 

Confidentiality

In many states, communication during a mediation is confidential. These communications are inadmissible in court and may not be compelled by discovery. To keep communication confidential during a mediation, check with your video conference provider to make sure they offer encryption methods and HIPPA-compliant privacy protections. An attorney should review the proposed encryption methods and privacy protections with their clients before the mediation date.

Always treat the video conference with the other side as a recorded event.  Although it is possible to disable the recording features, it is impossible to prevent the other participants from recording the video conference using outside video recording devices. Even in breakout rooms, during particularly sensitive discussions, it may be prudent for the attorney to call the client away from the video conference to avoid the risk of accidental disclosure. 

Signing

If a deal is reached, participants should never leave a session without a signed agreement. Even if you are not in the same room or state, parties can sign the agreement using electronic signature services, such as a DocuSign or Right Signature. If these services are not available, participants may sign the agreement or term sheet in counterparts by signing and exchanging it via email in PDF format.

Virtual mediations may never entirely supplant in-person mediations, but with today’s challenges, technology is providing a gateway to move cases forward. Virtual mediations and in-person mediations each have different applications depending on the issues and circumstances of a case. By understanding the strengths and weaknesses of each, attorneys should be able to select a method that will work best for their clients.