Suggestions for a Successful Virtual Mediation
The impact of the coronavirus has significantly changed the way we mediate cases. Pre-pandemic mediations were often held in person, with all relevant parties present. These mediations often lasted several hours which allowed the mediator to have detailed conversations with the parties about the strengths and weaknesses of a case in an effort to reach a resolution.
Most mediations are now held virtually which presents several new and unexpected challenges to the mediation process. Because they are held over the phone or via video-conference mediations are now shortened and less personal, which can derail otherwise successful negotiations. Below are suggestions to help facilitate a successful mediation, despite the challenges presented by the virtual process.
1. Encourage the Plaintiff to be Present for Mediation. In person mediations often required Plaintiffs to be present while the mediator discussed the strengths and weaknesses of a case, as well as the offers being exchanged between the parties. This process allowed the Plaintiff to understand the defense position, and the reasoning behind the defense settlement offers. Oftentimes, hearing the weaknesses of the case also allowed the Plaintiff to be more realistic about the case value.
Virtual mediations can often result in the Plaintiff not being present for discussions between the Plaintiff’s attorney and the mediator. Because of this, the Plaintiff’s attorney may only relay the offers presented by the defense, without fully explaining the defense position or the weaknesses of the case. This often results in an unrealistic Plaintiff, who is unwilling to resolve the case at mediation.
Because of this, we encourage requiring the Plaintiff’s presence at mediation, including all discussions with the mediator, before scheduling mediation. If the Plaintiff is unwilling to attend, then it is better to save the costs of mediation and instead attempt to resolve the case with informal discussions between the attorneys.
2. Invite Dialogue and Discussion of the Facts. Virtual mediations are often shorter, focusing less on the facts of the case and more on the settlement offers. This is done to make the process more efficient; however, jumping to discussion of settlement offers before having a detailed discussion about the case facts, both positive and negative, often leads to an unsuccessful mediation. Settlement offers are meaningless unless the other side knows the factual, and legal, reasons for the offer. Because of this, we recommend having a detailed discussion about the facts of the case before offers are exchanged.
3. Share your Mediation Statement with the Other Side. Attorneys frequently provide persuasive mediation statements to the mediator in advance of mediation but are hesitant to provide their mediation statement to the other side. To ensure the Plaintiff hears and understands the defense position at mediation, we encourage providing a persuasive mediation statement to Plaintiff’s counsel in advance of mediation. The mediation statement should be factually detailed and easy to understand. To do this, we encourage including citations to depositions and relevant records in the mediation statement.
We also recommend sharing information during mediation. Because the mediation is held virtually, it can be helpful to create a PowerPoint presentation which can be shared by the mediator with the other side. Like the mediation statement, this presentation should include all relevant facts, and citations to deposition testimony and relevant records.
4. Be Prepared. Because the mediation is not in person, it is easy to for an attorney to limit mediation preparation and instead rely on the ability to read and review case documents while mediation is ongoing. Limited preparation not only puts an attorney at a disadvantage by not knowing all of the relevant facts and legal issues, but also conveys a lack of interest and thought regarding the Plaintiff’s case. Plaintiffs often view mediation as their day in Court, and an opportunity to discuss, and hopefully resolve, a difficult incident or situation in their lives. Because of that, it is important to show the Plaintiff that their case has been fully investigated and valued by the defense. This is only achieved through preparation.
Mediation is still a successful way to resolve cases in an effective and efficient manner. However, additional planning and consideration is necessary to resolve cases through the virtual process. If the above suggestions are utilized, virtual mediation can result in a successful outcome for all parties involved.