Practicing without pausing during a pandemic: Adapting to change and experience with using video technology at mediation

Introduction

Everyone in the entire world is currently feeling the effects from the worldwide pandemic of the coronavirus disease 2019 or COVID-19. As trial lawyers, COVID-19 has also had a massive impact on how we practice law and represent our clients. Despite our current limitations and obstacles that we face, as trial lawyers we must embrace the technology that we have at our own fingertips to continue zealously advocating for our clients. COVID-19 is here for now and none of us truly know how long our daily lives and practices will be impacted by this deadly virus. We have a choice to make. We must either pause our practices, further delaying our clients’ access to justice, or adapt and move forward using alternative methods to fight for our clients.

We are trial lawyers. We are fighters. When we face obstacles and challenges, we don’t give up and throw in the towel. We must find ways to adapt and overcome, and ultimately persevere. COVID-19 has currently changed the way live and the way that we all practice law, but we must not let it pause our fight for our clients.

At the time of writing this article, I am certain that many of the readers have now participated in mediation by using video-conferencing technology post COVID-19. However, I suspect that I might have been one of the first to do so following Governor Newsom’s statewide shelter in place order on March 19, 2020.

My mediation was set to take place the following morning in Phoenix, on March 20, 2020. My flight, rental car and hotel were all booked a few weeks in advance. While I continued to monitor the COVID-19 news each day in early March, I was highly optimistic that we would still be able to conduct the mediation in-person. With each passing day, I felt more and more uneasy about my clients, my co-counsel from Las Vegas and myself travel-ing in public places, placing ourselves at risk of being exposed to the virus. 

On Monday, March 16, 2020, it was decided between the mediator, opposing counsel, my co-counsel and myself that we would attempt to mediate via video conferencing/telephone conferencing, rather than continue the in-person mediation itself. The plan was to have my clients appear, in person with me in my conference room in Orange County, my co-counsel via video conferencing in Las Vegas, while opposing counsel, their ad-juster and the mediator would appear from their locations by phone on a conference call. This was certainly not an ideal situation, but we had to adapt and change to our circumstances. Thinking that we now had a solid plane in place, little did we know that the evening before the mediation, Governor Newsom would issue the statewide shelter in place order.

Now, rather than having my clients appear in person at my office, I emailed my clients late that evening to inform them that due to the shelter in place order, I would need them to also appear via video conferencing. Again, not ideal, but we had to adapt and change to our circumstances.
As to the mediation itself, let me describe my experience as to what was used, what worked, and what I learned and might do differently in the future.

What was used

Prior to our mediation, we reviewed several different video conferencing systems. There are several videoconferencing features out there to choose from, including Zoom, GoToMeeting, Blue Jeans and Cisco. All of these systems have different pricing and options, as well as their respective limitations. Not advocating on behalf any of the named companies, but we ultimately decided to use Zoom. After testing their features, I personally found it to be the most user-friendly for almost anyone to use, across all platforms.

I personally do not prefer joint mediation sessions, as I like to be able to speak freely and confidentially with my clients and co-counsel outside the mediator and the other side. One of my biggest concerns is how we could communicate confidentially without the other side monitoring our conversations on the conference call. The mediator was not tech savvy, so “did not know how” to participate in a video conference, so he setup a telephone conference call between the parties.

Our mediation was scheduled for 10:00 a.m., so it was decided that my clients, my co-counsel and myself would join a video-conference at 9:30 a.m. alone, to answer any questions and discuss our strategy for the day. Additionally, we also decided to setup a text message chain on our side, so that we could chat confidentially while the mediator and/or other parties were present on the call.
At 10:00 a.m., everyone called into in telephone conference call line for our introductions with the mediator, along with the respective parties and their lawyers/adjusters. Although it was somewhat awkward doing so, it was really no different than if we were all sitting together in the same room together. My clients and I could see each other’s faces, along with our reactions and could also motion to check the text message chain when needed. Following the introductions, the mediator asked for the opposing counsel and his adjuster to hang up from the call. Not trusting insurance companies, I asked the mediator that we disconnect the call and I would call back on my cell phone to ensure that the other side had in fact logged off from the call.

What worked

This is essentially how the mediation was conducted the entire day. Our side remained on our video conference for the entire day and we would communicate by phone with the mediator on his end. The mediator would do his typical “back and forth” between the parties, but would call me on my cell phone to deliver news from the other side. I would put my cell phone on speaker phone and everyone on our side would listen in and make comments. Again, not ideal, but we had to adapt and change to make the best of our circumstances.

Other than us actually sitting together in a conference room at the neutral’s office, it was really not much different and actually had some real positives. On a typical mediation, there are often the long commutes for the parties, or travel arrangements for out of town folks. My office is in Orange County and when participating in mediations in Los Angeles or San Diego, that often means a two-hours plus drive each way, on top of the actual time spent at the actual mediation itself. The same goes for my clients and their traveling from their respective locations as well. Rather than spending the two-hours plus prior to the mediation sitting in traffic, you can actually use that extra time for additional preparation of your case, or simply continue to run your everyday law practice.

Mediations are often long, emotional and grueling. Additionally, cases do not always settle at the end of that same day at mediation. Saving the additional two-hours plus drive home following an unsuccessful mediation can be extremely helpful to everyone’s mental psyche after a draining day.

No different than an in-person mediation, during the down time and while the mediator is with the other side, the attorneys can continue work on the current case or take phone calls and emails for their other cases. The clients can also take a break themselves to work on personal or work matters. In our particular mediation, our clients who are parents of young children did not have to make arrangements for child-sitting and pick-ups from school/day care. This saved them time and money to participate from the meeting from the comfort of their own home. During our session, it was decided that we would send a group text once the mediator arrived back after meeting with the other side.
Ultimately our case did not settle at mediation, but overall, I was pleased with the way that it unfolded and would not hesitate to participate again, even after we return to our normal post-COVID-19 lives. However, there are some things that I might do differently.

What was learned / What to do in the future

With all technology, it is ever-changing, and we must keep up along the way with those changes. I have had conversations with several other lawyers that have participated in mediations through video technology, since the shelter in order place as well. With each passing mediation, the lawyers are learning to adapt and change to the ever-changing circumstances.

I have heard concerns about hacking and privacy considerations, whereby some unknown third party may be able to listen in, or join a video session. It is imperative that whenever we are discussing matters with our clients via a video conference, that we ensure that the meeting is password protected. Equally as important is to advise our clients not to share those particular credentials with anyone else.

In the future, it is also important to discuss with opposing counsel the type of video conferencing system that is to be used, along with how it will be conducted with respect to joint sessions, as well as private sessions, when needed. Equally important is to find a strong neutral, who is experienced and comfort-able with using the technological process that is needed, to make the mediation run smoothly.

I’m sure that, like me, most of you have received voluminous emails from the various mediation companies, touting their use of videoconferencing for upcoming mediations. I believe that as time progresses, this will become the norm for most of their neutrals to use videoconferencing and they will be well-accustomed to run the mediation smoothly.

Just like in trial, people do not like delays while attorneys are working on trying to make their presentations run/load. It is important that everyone involved have a strong internet connection, a working camera and clear audio. You should familiarize yourself with the particular video conferencing systems and test it out a few times before the day of mediation. I have learned after the fact, that some of these systems have “break out rooms” where the mediator can separate the par-ties in their own private rooms to ensure confidentiality.

Most of the videoconferencing systems also have screen sharing tools, to share and show documents, photos and videos to the mediator, or other side. Even though both sides have submitted their own briefs and exhibits prior to mediation, disputes will often arise during the course of the session with medical records, injury complaints to doctors, among others. With these screen sharing tools, the attorneys can quickly retrieve and share a document, photo or video with the neutral to dispel the other side’s claim.

Further, just because we are sitting in the comfort of our offices or homes, I highly recommend that you and your client dress as if you were appearing at the mediation in person. Lawyers should wear court attire and clients should wear business attire. We are there to convince the other side and the mediator that we mean business. If we show up in a t-shirt and jeans, it does not set a great example that we are taking the matter seriously.

Conclusion

Overall, participating in mediation through videoconferencing technology was a positive experience, and I would most certainly participate again in the future. Historically, the use of such remote technology was frowned upon in legal settings. It is my belief, that as more and more lawyers begin to participate in video technology, it may completely change the way that we mediate and practice law in other ways, such as video depositions. I further believe that the courts will also begin to encourage video appearances for all routine matters. It will save time, money and resources for everyone involved in the process. Further, it will reduce the amount of traffic on our roadways, parking at the courthouses and the number of people inside the courthouse at one time.

Despite the challenges that we currently face due to this worldwide pandemic, we should take this time to embrace technology to improve and advance our cases moving forward. We are trial lawyers and we don’t ever pause or stop fighting for our clients’ access for justice.