By Sheldon J. Stark
During the state of emergency, courts have been working at less than full capacity. While no two courts are the same, none have conducted business as usual since mid-March, and there will likely be backlogs as a result. Some cases are backlogged because of hearings being adjourned and new matters not being set. Still more cases will come into the trial courts as legal and public health conditions continue to relax.
The pandemic is here. Stay-at-home orders are in place. Courts are barely operating. The State Court Administrative Office is posting Toolkits to help judges “triage” their dockets anticipating when things start returning to normal.
Many lawyers are working from home, their offices closed with limited access. Normal routines are at a standstill. While most court matters are postponed, lawyers must decide whether to adjourn or pursue discovery and alternative dispute resolution (ADR) processes. I write to suggest that the factors favoring ADR outweigh the factors favoring adjournment.
Issue 1 – Security: You may have read that Zoom is not secure. Whatever problems there were appear resolved. I believe Zoom is both secure and confidential. First, no one gains access to a Zoom meeting without a passcode and meeting number. Second, individuals must be admitted to the mediation through a “waiting room” feature controlled by the mediator. No one unrecognized can gain access. Third, once the mediation begins, the mediator host can “lock” the meeting and prevent anyone else from joining. Fourth, no one in a breakout room can hear, access or see what is happening in another room. Fifth, the mediator host can disable recording of the session by a party or lawyer using Zoom itself.
Issue 2 – Mediator Selection: The same principles apply now as in the days before COVID-19 turned our world upside down: Is the mediator trustworthy, competent, prepared, committed? Will he or she be acceptable to the other side? Does the mediator prepare? Is the mediator a “closer” who sticks with it and doesn’t give up too soon? Is the mediator creative? Does he or she have subject matter expertise? Today, you should also ask whether the mediator is trained to mediate using a video platform. Mediations are difficult enough without technical glitches interrupting or distracting the participants. Trained mediators ensure that each mediation is secure and confidential, is not recorded, and is a smooth professional process through all the stages, including joint sessions, private caucuses, shuttle diplomacy, and lawyer only conferences. The National Academy of Distinguished Neutrals (NADN), for example, denotes which mediators are familiar with which video platforms.
Issue 3 – Preparation: Despite the popularity and growth of Zoom, some advocates and clients are unfamiliar with the technology and experience anxiety even thinking about it. If you find yourself in that category, you can easily discover whether your favorite mediators offer to help prepare you and your clients to use the process and make the most of it. See, for example: https://www.starkmediator.com/wp-content/uploads/sites/4/2020/04/GUIDE-TO-ONLINE-DISPUTE-RESOLUTION.pdf and, https://www.starkmediator.com/wp-content/uploads/sites/4/2013/10/2013_Article_Making_the_Most_of_Mediation.pdf
To assist parties and lawyers in getting comfortable with the program, I offer a complementary practice session. Practice sessions extend from 15 to 45 minutes. Practice sessions ensure participant audio and video features are working, the parties are able to navigate from one room to another, and all understand Zoom features such as “Chat” (to send one another messages), “Share Screen” (to view documents and images), and “Security” (to lock out intruders).
Issue 4 – Does It Work: My experience with Zoom has been uniformly good. There have been few technical difficulties, mostly related to unreliable internet connectivity. The solution to virtually all glitches is simple: the person who drops out of the mediation is directed to log out and rejoin. That resolves almost all problems. If all else fails, I have a conference call line to complete the process via telephone. Depending on the dispute and the preferences of the parties, the individual having technical difficulties may participate by phone while others remain on Zoom.
Here’s the process in a nutshell: In preparation for the date set for mediation, everyone receives a link with a password and meeting number. The parties and lawyers log in and wait for admission in the “waiting room.” At the scheduled time for mediation, the mediator admits everyone into “the main room.” Once sound and video are checked, the mediator collects cell phone numbers to text or call in the event of technical difficulties. I also provide my cell to everyone in case someone has a problem and wants to reach out to me. Participants are then moved to their breakout rooms. For a two party mediation, I typically create four: a caucus room for the plaintiff team, a caucus room for the defense team, a joint session room for the mediator’s opening remarks, and a lawyers only room in the event the lawyers want to confer with each other or meet privately with me. If agreement is reached, the lawyer only room is typically where we hammer out language issues. For signatures, most people – including parties – own a printer/scanner. They sign the last page of the agreement, initial the others, scan them into their computers and email to their attorneys who, in turn, exchange the documents.
Where someone does not own a scanner, they take a cell phone picture of the signature page and text it to their lawyers. Technology has not been a barrier to signing documents.
In my judgment, the advantages of mediating with Zoom outweigh the disadvantages:
Advantages:
• No risk of transmission of disease through face-to-face contact.
• If expeditious resolution is important, there is no need to wait until the pandemic subsides.
• Zoom is secure, private and confidential.
• Confidentiality is maintained because meetings are not recorded.
• Embarrassing or uncomfortable chance encounters with the other side are eliminated.
• Cases settle. Each of the matters I’ve mediated using Zoom thus far has resolved.
• No need to bring your client to your office to participate.
• Mediate from home, your office or anywhere you have private wi-fi service.
• No travel time.
• No mediator travel fees
Disadvantages:
• You’re staring at a screen the entire day.
• Video interaction is not as satisfying as face-to-face.
• An unauthorized person could be listening in on the other side without you knowing.
• A party could be recording with a cell phone. (I address this issue and the participation of unauthorized persons at the very start of the process.)
• Sometimes technical difficulties interfere with an orderly process.
• Uncertainty regarding whether your client has the financial resources to contribute to a resolution and survive the economic downturn.
• Limited ability to observe body language.
• Mediator’s persuasion and influence may be reduced when not face-to-face with decision makers.
• Video mediations can take longer.
• Document exchange and signing can be clumsy.
Conclusion: The Zoom platform is free to the participants. The process works much like the face-to-face mediation process to which you are accustomed. Zoom offers you options. They are worth exploring.
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Sheldon J. Stark offers mediation and arbitration services. He is a member of the National Academy of Distinguished Neutrals, a Distinguished Fellow with the International Academy of Mediators and an Employment Law Panelist for the American Arbitration Association. He is also a member of the Professional Resolution Experts of Michigan (PREMi). He is past Chair of the council of the Alternative Dispute Resolution Section of the State Bar and formerly chaired the Skills Action Team. Stark was a distinguished visiting professor at the University of Detroit Mercy School of Law from August 2010 through May 2012, when he stepped down to focus on his ADR practice. Previously, he was employed by ICLE. During that time, the courses department earned six of the Association for Continuing Legal Education's Best Awards for Programs. He remains one of three trainers in ICLE's award-winning 40-hour, hands-on civil mediation training. Before joining ICLE, Stark was a partner in the law firm of Stark and Gordon from 1977 to 1999, specializing in employment discrimination, wrongful discharge, civil rights, business litigation, and personal injury work. He is a former chairperson of numerous organizations, including the Labor and Employment Law Section of the State Bar of Michigan, the Employment Law and Intentional Tort Subcommittee of the Michigan Supreme Court Model Civil Jury Instruction Committee, the Fund for Equal Justice, and the Employment Law Section of the Association of Trial Lawyers of America, now the American Association for Justice. He is also a former co-chairperson of the Lawyers Committee of the American Civil Liberties Union of Michigan. In addition, Stark is chairperson of Attorney Discipline Panel #1 in Livingston County and a former hearing referee with the Michigan Department of Civil Rights. He was a faculty member of the Trial Advocacy Skills Workshop at Harvard Law School from 1988 to 2010 and was listed in "The Best Lawyers in America" from 1987 until he left the practice of law in 2000. Mr. Stark received the ACLU's Bernard Gottfried Bill of Rights Day Award in 1999, the Distinguished Service Award from the Labor and Employment Law Section of the State Bar of Michigan in 2009, the Michael Franck Award from the Representative Assembly of the State Bar of Michigan in 2010. In 2015, he received the George Bahara, Jr. Award For Exemplary Service from the ADR Section of the State Bar. He has also been listed in "dbusiness Magazine" as a Top Lawyer in ADR for 2012, 2013, 2015, 2016, 2017 and 2018.
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