Robin Harrison, Partner, Hicks Thomas LLP
Since the COVID-19 pandemic arrived, civil trials largely have come to a halt. The courts are beginning to conduct some trials in person and some remotely, but there is no question that it will be some time before the courts will be running like they did before the pandemic. In the meantime, remote mediations have been born of necessity. If our clients are going to have a chance to resolve their cases during this time, remote mediations will be an important tool used by the courts and trial lawyers to keep their dockets moving.
Last month, I hosted our second Lawyers Roundtable via Zoom, titled “Remote Mediation: Pros, Cons, and Should We Just Wait ‘Til This Is All Over?” with a panel of six mediators and trial lawyers, including my law partner, Jay Old, and this month I moderated a Texas General Counsel Forum panel discussion with two mediators, two in-house counsel and my law partner, Courtney Ervin, titled “Remote Mediation: Strategies, Technology and the State of the Practice.” This article recounts the participants’ comments and suggestions along with some of my observations about mediation generally and the remote mediation process.
REMOTE MEDIATION: WHERE WE ARE
Let’s start with a given: If parties are going to resolve their cases with “stay-at-home” pandemic rules in place, remote mediations often will be part of the process, like it or not. But fear not. While the Roundtable and General Counsel Forum panelists agreed that in-person mediations are preferable, they also agreed that remote mediations are working better than they had expected they would. Some believe that remote mediations can be as effective as in-person mediations in almost all cases.
There are difficulties and shortcomings, of course. Some of the human touch of a face-to-face meeting is lost to the mediator and the lawyers. The more parties that are involved in the dispute, the more difficult and time-consuming communications and negotiations become in a remote mediation. On the other hand, scheduling difficulties caused by the need to coordinate travel schedules, early departures by a party with a travel schedule and other time conflicts can be more easily avoided, along with some of the expense. Similarly, the mediator will find it easier to follow up with the parties and their counsel or even reconvene a mediation session using remote meeting technology. And more party representatives, in-house counsel, trial team members and even party witnesses can participate in the remote mediation when that is desired. Other pros and cons are discussed firther in this article.
REMOTE MEETING TECHNOLOGY FEATURES
There are several remote meeting software platforms in use for remote mediations, including Zoom, Webex, Microsoft Teams, BlueJeans and Lifesize. Zoom is the most commonly used of the remote video communications platforms because mediators find its features to be the best for mediations and most user-friendly. All offer variations of the key features that meet the needs of mediation participants. Those features include (using Zoom terminology) Screen Share, White Board, Breakout Rooms, and Chat. Screen Share allows the speaker to share documents, PowerPoint slides, photographs and video with all of the participants during a presentation. White Board, as the name suggests, allows the presenter to write on the screen to display notes, lists, damages amounts and drawings as they might a on a flip chart or white board in a conference room or court. Breakout Rooms are set up by the mediator to allow private communications among subsets of participants and the mediator. The mediator may set up multiple Breakout Rooms to facilitate individual conversations with the lawyers, as well as client representatives. Chat can be used to facilitate text messages among the participants during mediation. These features usually are supplemented with text messaging or good old-fashioned telephone calls among participants or with the mediator. All participants on a side should exchange their cell phone numbers and get the mediator’s cell number in advance for this purpose.
Obviously, you will want to be comfortable that the mediator whom you and your client agree to work with has experience with the remote meeting technology to allow for an efficient and effective mediation. Get recommendations from your colleagues who have done some remote mediations if you are not personally familiar with some mediators who are using the new technologies.
If you are not familiar with remote meeting technology, most platforms have excellent materials and tutorials on their websites. With clients who are not familiar with the technology, it is a good idea to practice with the technology in advance of the mediation to avoid problems that may hinder the progress of the mediation and also to build some trust in the technologies’ features, like Breakout Rooms, that the mediator may employ. If you are not or your client is not comfortable with the Breakout Room feature’s privacy, you can set up your own separate Zoom call on mediation day or use email and your phones for private communications during the remote mediation.
Note that some companies and law firms have computer security protocols that may prohibit the use of some remote meeting platforms because of security concerns. But early security issues caused by the software or user error have largely been addressed by the popular platforms.
THE JOINT SESSION: TO DO OR NOT TO DO
The trend these days is moving away from conducting the joint session where the parties’ lawyers make a presentation about the case, answer questions that may be posed by the mediator and (rarely a good idea) have client representatives speak in a setting where all parties to the mediation are present. Some believe that parties regularly involved in litigation don’t gain much in the joint session and that there is the occasional ruckus that can result from putting adverse parties together around a conference room table (real or virtual) after months or years of litigation.
Mediators, however, think that the joint session is often essential to the settlement process, serving the advocacy and educational process among the parties and allowing the mediator to set the stage for the day. In many cases, the joint session provides a valuable opportunity for trial counsel to speak directly to the opponent’s representative, particularly if there is a concern that the opponent’s lawyer has not adequately communicated key evidence and the risks of the case to his or her client. When the joint session is conducted remotely, it is best to keep the presentation brief, using the platform features to display key exhibits or a deposition transcript or video excerpts. A remote presentation will not hold participants’ attention for much longer than a 60 Minutes segment (15 minutes, give or take). Use that time to communicate primarily with the opposing party’s representative, not the lawyer or the mediator, and set the stage for an informed and productive session. The opposing party — plaintiff or defendant — needs to appreciate the downside of going to trial and that you are prepared and ready to do so. This does not mean that table-banging is in order. You don’t want to get off to a bad start and leave the mediator to deal with a bruised ego in the other room. If your goal is settlement, however, you do want to persuade your opponent— and here I mean the party, not counsel — that their Option A (settlement) is preferable to their Option B (going to trial). The joint session is your opportunity to do that.
In-house counsel on our panel also noted that it is important in some cases for their client to mediate in person, even during the pandemic when possible, to better demonstrate a personal interest in the case and in their opponent’s concerns as well. This is difficult to accomplish remotely on a computer screen. In those cases, clients and their in- house and outside counsel are best advised to mediate in person, even if that means waiting until that is possible for all of the parties.
THE MEDIATION MEMORANDUM: MORE IMPORTANT THAN EVER
Detailed mediation memoranda, including exhibits that all parties should have access to during the remote mediation, play a key role in remote mediations. Most mediators in complex commercial cases prefer to have the detail of the case and the key documents in advance to speed their climb up the learning curve of the case and eliminate delays on the day of mediation.
The trend is also toward exchanging detailed mediation memoranda among the parties. This can serve the purpose of a joint session and allows the parties to get to the important negotiation and trading phase of the mediation faster. There really are few if any surprises in a case where adequate discovery has been conducted before mediation and, if the mediator is expected to keep information that is in the memorandum confidential from the other side, it does not arm the mediator to assist in resolving the case. Where there is a need to provide information to the mediator that a party does not wish to provide to the other side, a modified memorandum can be prepared that still allows most of the parties’ information to be exchanged.
PREPARATION FOR THE MEDIATION
Advance work in preparation for the mediation, in addition to preparation of detailed memoranda provided to the mediator and exchanged by the parties, is key. Mediators in complex cases usually are willing to speak privately with each party’s lawyer about the case in advance of mediation day. Parties should take advantage of that opportunity. Mediators appreciate having the opportunity to speak with the parties’ lawyers in advance to learn about the case, the parties and any previous settlement negotiations and will make time when possible to have those conversations in advance. The lawyers can use that opportunity also to develop some rapport with the mediator if it is someone they have not worked with before. The remote technology facilitates the mediator-lawyer communication before mediation day. This again allows the mediator to get up to speed and shortens the downtime that will otherwise have to be used for that purpose during the mediation, time that should be used for settlement negotiations. In some instances, the parties can use these premediation communications with the mediator to evaluate whether they are in the same ballpark or if there is missing information or other hurdles to a productive mediation that might warrant postponement.
The time spent by counsel with their client before the mediation to discuss the case, the mediation process and settlement strategy can be conducted over Zoom to practice using the technology, especially with clients who are not familiar with it. The participants’ internet connections can be tested and their comfort level with the technology enhanced in the process.
Once the trading begins, the remote mediation usually will proceed like the in-person process, with the mediator moving between the parties’ Breakout Rooms to facilitate the negotiation. There are some differences that can take away from the remote mediation process. Mediators will usually not be as easily summoned back to a party’s Breakout Room or be able to move as quickly from room to room. Mediators say they sometimes are not able to “read the room” as easily when offers and counteroffers are communicated. That is, they may not be able to see everyone in the respective parties’ rooms and their reactions to offers or to the mediator’s comments about important facts and case strengths or weaknesses — information they use to gauge the progress being made.
Mediators also may find it more difficult to communicate separately with the lawyers — often an important tool the mediator will use to advance the process. They cannot catch the lawyers in the hall during the day for a brief chat like they could in in-person mediations. But they can and do set up additional Breakout Rooms for this purpose. The roundtable mediators do not think that the loss of the effect of keeping the parties locked down in their offices into the night until a settlement or stalemate is declared has impacted their remote mediations.
The parties in their remote Breakout Rooms are less likely to know if a participant they consider important to the mediation has temporarily or permanently “left the house.” On the other hand, the well-worn threat that the insurance carrier’s representative has a plane to catch at 4 p.m. can be taken even less seriously than before.
DOCUMENTING THE SETTLEMENT AGREEMENT
If the mediation results in a settlement during the mediation session, the usual and best practice is to get a written agreement signed by all parties before the mediation is concluded. The mediation settlement agreement must contain sufficient material terms of the parties’ agreement to be binding and enforceable, although lesser terms can be included in later, final documentation. In all cases, but particularly because of the more cumbersome and time- consuming nature of a remote mediation, I recommend that counsel prepare and bring to the mediation a form of settlement agreement tailored in anticipation of the significant terms that will be negotiated during the mediation. The settlement draft should also include the more standard terms like release and indemnity, dispute resolution, default and postdefault interest provisions and provide for dismissal of the case, recovery of attorney’s fees, and appropriate representations and warranties and disclaimer of reliance provisions. If a settlement is reached, the form can be exchanged (by email or using the Share Screen function) and used to document an enforceable agreement, reducing the chances that important terms might be omitted as a result of a long day of mediation. Mediators usually have a template they will offer, but those are necessarily limited and do not contemplate all of the terms of the agreement that may result from your mediation in a complex matter.
Then, of course, the parties have to remotely sign the written agreement. Signatures may be scanned and exchanged by email, an electronic signature program (like DocuSign) may be used or the parties can affix electronic signatures to their signature pages with the qualifying language of the Uniform Electronic Transactions Act. With this in mind, prepare the form of the draft settlement agreement in advance in anticipation of the exchange of signatures remotely.
As I noted at the beginning of this article, remote mediations will be with us at least until the COVID-19 pandemic passes. We can also expect that they will impact our practices beyond the pandemic. Parties may decide, in some cases postpandemic, that the cost savings of a remote mediation make it preferable to an in-person mediation. Clients may insist that their cases be mediated remotely or that their representatives be allowed to participate remotely to avoid the inconvenience and expense of attending the mediation in person. In the meantime, settlements can be accomplished to our clients’ benefit during the pandemic restrictions with an appropriate understanding of and preparation for the new remote mediation processes.
Thanks to the mediators (Erin Lunceford, Dan Downey, Mark Glasser, Gary McGowan and Chris Nolland), in-house counsel (Vijay D’Cruz and Katie Ahlrich of Enterprise Products) and trial lawyers (Courtney Ervin, John Kim, Bill Maines and Jay Old) for their contributions to our panel discussions and the information in this article.
Robin Harrison is Board Certified in Civil Trial Law by the Texas Board of Legal Specialization and has been recognized in commercial litigation by Chambers USA, Best Lawyers in America and Texas Super Lawyers. If you would like to receive notifications of future Lawyer Roundtable presentations hosted by him, contact him at email@example.com or 713-547-9179.