During the shelter-in-place orders issued to combat the COVID-19 pandemic, many enterprising family law attorneys turned to technology to serve their clients’ needs. Where feasible, virtual mediations with video conferencing applications replaced in-person mediations.
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 should be a continuing resource, offering flexibility, cost-savings, and client comfort. Virtual mediations provide unparalleled convenience.
The Benefits of Virtual Mediations
Because in-person mediations require attorneys, clients, and mediators to travel to a common location, often in high-rise buildings in city centers, a full day, or at least half a day, is generally required for the mediation session.
Virtual mediations, on the other hand, may be held anytime and anywhere, making them an attractive option for clients who live in separate cities, have limited availability, or have unconventional schedules. The flexibility of virtual mediations also opens possibilities for shorter sessions focusing on discrete issues, which may provide a time and cost-efficient solution 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 can provide a platform for efficiently resolving these issues without needing to coordinate in-person meetings, even long after the pandemic has receded.
The Importance of a Trial Run
Of course, the conveniences of virtual mediations may be negated if participants are unable to connect, or where the video conferencing is disrupted by audio feedback or background noise. Participants must have a basic familiarity with the platform, be it Zoom, Microsoft Teams, Webex from Cisco, or another service. A pre-mediation trial run between the attorney and the client using the proposed service can 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.
To ensure quality video, speeds of 1.5 to 3 Mbps allow for high definition video. At a minimum, 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.
Camera positions requiring a participant to look unnaturally up, down, or sideways into the camera provide unflattering viewing angles. The ideal camera position is eye level to slightly above eye level. A soft light source behind the camera, facing the participant, provides ideal lighting. Overhead lights or backlights from lamps or windows cause dark shading on the participant’s face. Cluttered or distracting backgrounds should also be avoided.
One of the hallmarks of mediation is confidentiality. In many states, communications made during mediation are inadmissible in court and may not be compelled by discovery. These protections promote open communication during mediation. Many video conferencing providers offer encryption methods and HIPPA-compliant privacy protections. Attorneys must ensure adequate safeguards are used by the host or mediator during virtual mediations to adequately protect confidentiality and privacy. Before doing a virtual mediation, attorneys should review the proposed encryption methods and privacy protections with their clients to ensure that they meet concerns and expectations.
Although video conferencing services have recording options, these may be disabled. Attorneys should nevertheless caution their clients that it is impossible to prevent other participants from recording the video conference using outside video recording devices. When using video conferencing, attorneys should advise their clients to always be aware of the other participants in the conference and to understand that there may be no way to guarantee confidentiality and privacy.
In addition to a trial run between attorney and client, all participants and the mediator should hold a pre-mediation orientation using the proposed video conferencing service to ensure that all participants are able to connect and to use the necessary features. During the orientation, the participants may also discuss how to structure the mediation. Will there be waiting rooms, breakout rooms, or joint meetings?
In family law proceedings, emotions may run hot, or there may be a history of domestic violence. In such cases, in-person mediations could be a major source of anxiety. Virtual mediations may help reduce anxiety or conflict by allowing clients to participate from the comfort of their homes. Using waiting rooms and breakout rooms can ensure that participants are always kept in separate video conferences.
Too much comfort, however, may inhibit settlement of the hard issues. Issues discussed at mediation are often challenging and nuanced. If they were easy, parties could simply resolve them on their own. Virtual meetings carry the risk that the mediator’s ability to build rapport, identify common ground, and create compromise, will be hamstrung without the ability to talk to parties face to face, in person. Genuine human interaction is difficult to replicate in a virtual setting. There is a reason why people travel hundreds or thousands of miles to meet in person for major negotiations in business, government, and the law.
Doubtless, for some cases, everyone meeting in the same place, rolling up their sleeves, and getting to work will remain the best way to resolve certain issues outside of court. Although in-person mediations may hold an advantage for final attempts to settle cases before trial, virtual mediation remains an effective tool for addressing interim issues or for narrowing issues. As attorneys and mediators gain more experience with virtual mediations, they will continue to learn what works and what does not in a virtual setting.
In the previous months, with the rise of video conferencing, it has seemed that participants tend to behave more civilly in video conferences than they might in an in-person meeting. Participants have seemed more willing to approach problems collaboratively rather than as adversaries. It is too early to know whether this phenomenon will be a lasting feature of video conferencing or whether it might be attributable to the relative newness of the technology and the global crisis facing the entire world.
Just as with in-person mediations, if a deal is reached, participants should never leave a session without a signed agreement. When mediating remotely, parties may sign the agreement using electronic signature services, such as a DocuSign or Right Signature. If these are not available, participants may sign the agreement or term sheet in counterparts by signing and exchanging it via email in PDF format.
Although virtual mediations may never entirely supplant in-person mediations, 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 and clients should be able to select the right tool for the job.
Brandon Rose is a partner with trial law firm McManis Faulkner in San Jose, Calif. Rose leads the firm’s award-winning Family Law practice. www.mcmanislaw.com