To Zoom or not to Zoom? Whether ‘tis nobler in the hearts and minds of litigants to suffer the slings and arrows of outrageous stop signs, dress clothes and parking lots than to interact with a human being on a more personal level….
In today’s technologically obsessed world, the ease and comfort of wearing pajamas to work is a reality. Many people work from home.
Similarly, Zoom mediations have replaced live mediations to a large extent. Is Zoom here for good and is live gone?
I hope not. I see a need for both.
Zoom has its advantages. Many cases do not justify traveling long distances and even staying overnight in another city to attend mediation.
The same applies to cases where the parties have already made headway in resolving the case and just need a little more time with a mediator to put the finishing touches on the settlement.
Others have parties and attorneys from various distances and even states who would have to travel too long a distance and spend too much money to bypass a Zoom mediation.
I get it. But I still miss the human touch. And nothing can replace it.
I have been involved in many mediations as a lawyer and a mediator when Zoom worked just fine.
But there are others that clearly had a better chance of resolving if the parties and attorneys could have met live.
It is worth the expense of live mediation if you have a serious case with serious damages. The ability to look the other party in the eye, to make a personal connection, is invaluable and irreplaceable.
And the effectiveness of the mediator is enhanced in live settings.
But there is also a technological reason to consider live. Blackouts, computer issues, the dog barking in the yard, the next-door neighbor knocking on your door, the audio or video deciding to take a vacation are all disruptive to the mediation process.
Listen, Zoom has been the best friend to the mediator. I can, and have done, Zoom mediations all over the state and country, all without leaving my office.
But the purpose of my existence as a mediator is to serve the parties. And I can serve you better if I can pat you on the back or shake your hand.
Now, regardless of Zooming or not to Zooming, let me offer a few tips to litigators in preparation for mediation:
Prepare as if you are going to trial. The devil is in the details, and the most impressive presentations are the ones that are most organized and detailed. It increases your credibility.
Be humble. Don’t be arrogant. It’s not a good way to live anyway. Humility disarms your opponent. Arrogance gives the other side a psychological hurdle to overcome.
Talk to your client about what the process is and how all the numbers shake out in advance. As the plaintiff’s attorney in my personal injury cases, I always map out in advance the likely net for the client given a certain settlement amount. That made me understand the out-of-pocket medical bills, liens and costs.
In commercial cases, understanding past and likely future fees and costs helps immediately answer questions at the mediation.
I always try to set up a phone conference with the attorneys and/or parties prior to the mediation date. Take advantage of that. Get to know the mediator. This is your opportunity to be frank without your client being on the same screen or in the same room. It helps the mediator better understand the issues.
Bring your client to the mediation. It hurts when you don’t.
Musa Farmand is a litigation attorney with Lippes Mathias and a mediator with Miles Mediation & Arbitration.