Given that ZOOM is likely to be the way most mediations are conducted for at least the next month, and anticipating that some attorneys, adjusters and parties will opt to mediate remotely even longer (whether due to health concerns or to avoid unnecessary travel), it seems like a good time to take a closer look at ZOOM mediations — through the lens of the mediator — and answer the three questions I am asked most often.

1.   ARE ZOOM MEDIATIONS EFFECTIVE?

The short answer is “absolutely.” That is not to suggest that every ZOOM mediation has resulted in a resolution, but most of the cases that I thought would settle — based on my review of the briefs and my pre-mediation telephone conferences with counsel — have in fact settled, either on the day of the mediation or shortly thereafter. A brief review of some of the Full-Day Mediations that I’ve conducted shows just how effective ZOOM has been.

Through May 31st, I’ve conducted a total of 39 mediations using the ZOOM platform. Of those, seven were Full-Day Mediations, three of which lasted 11 hours each. Given the number of parties, two of those required me to use seven separate breakout rooms. In two of the 11-hour mediations, the parties were able to reach a global resolution that same day; in the third, I expect the parties to finalize their global resolution today, 10 days following the mediation.

The most complicated of the three — a real estate non-disclosure case brought by the buyers of real property against the sellers, the sellers’ real estate agents/brokers, the buyers’ real estate agents/brokers and a roofing contractor — involved 15 total participants and, among other things, required me to move defense counsel from their respective breakout rooms to a separate breakout room so they could strategize privately. Notwithstanding the challenges, the parties were able to reach — and document — a global settlement before the session ended.

Not only have most of my ZOOM mediations resulted in a resolution — they’ve settled for amounts that I believed to be within the “realistic range,” even though uncertainty about when the courts will resume jury trials has been perceived as having benefited defendants by placing extra pressure on plaintiffs to accept less now than they might otherwise consider to be fair and reasonable.

In one recent case, plaintiff was willing to engage in Guaranteed Resolution,™ but defendant had some reservations. Departing from my customary practice, I offered to email my pre-negotiation “projection” to both counsel, password-protected, and to allow defendant to reconsider at any point during the mediation process and let me know if he wanted to convert to Guaranteed Resolution.

As it turned out, the parties reached a resolution through traditional negotiations, but the attorneys were curious to know what my projection had been. At their request, I moved them to the same breakout room, shared the password to my pre-negotiation “projection,” and asked them to open the email simultaneously. To their mutual surprise, my pre-negotiation “projection” was within $5,000 of the settlement they had just negotiated

So, yes ZOOM mediations are effective, whether Half-Day or Full-Day. But don’t just take my word. Here are a few of the comments I’ve received following ZOOM mediations:

  • “…it was an entirely positive experience from the get go until the conclusion.”
  • “I did not mind Zooming at all, and particularly liked seeing the faces of other defense counsel whom surprisingly I had not previously met. The group meeting was helpful to me as it confirmed that the defendants were all on the same page.”
  • “As to the Zoom mediation, as I mentioned during our discussions, if both sides really want to get the matter resolved, then mediating through Zoom was as effective as coming into the office.”
  • “I like Zoom. It’s really awesome.”
  • “It was a wonderful experience for my first Zoom meeting or mediation. No kidding.”

With breakout rooms, screen sharing and the ability to sign settlement agreements using Docusign, ZOOM mediations provide mediators with features similar to the tools they would have available to them in an in-person mediation, allowing them to be just as effective.

2.   CAN MEDIATORS ESTABLISH RAPPORT IN ZOOM MEDIATIONS?

Once again, the short answer is “absolutely.” I’ve found that empathy, warmth, sensitivity, concern, objectivity, openness, a calm demeanor and a sense of humor can all be shown almost as easily during ZOOM mediations as during in-person mediations — and much more easily than mediations conducted by phone.

Admittedly, it can be more challenging to establish eye-contact during ZOOM mediations because looking directly into the camera lens is a bit unnatural. For obvious reasons, we want to see the reaction of the person to whom we are speaking, but that requires that we turn our head away from the camera lens. As a result, it looks as though our focus is elsewhere, which can be disconcerting. With practice however, we can train ourselves to stare into the camera lens more often, creating a sense of eye-to-eye contact. Moreover, there are a few technical tricks — placing greater distance between ourselves and the camera lens; repositioning the ZOOM screen so the person to whom we are speaking is more centered — that can also help establish better eye-contact.

During one of my marathon Full-Day Mediations, in the middle of an exchange with plaintiff husband and wife where I feared I had become just a bit more contentious than I needed to be, plaintiff wife suddenly interrupted and said: “I like your smile.” That’s when I knew the case was going to settle.

3.   CAN MEDIATORS READ BODY LANGUAGE IN ZOOM MEDIATIONS?

To my surprise, the answer — yet again — is “absolutely!” Ironically, it may actually be easier to read facial expressions in ZOOM mediations than in person.

When mediating in person, the parties — for a variety of reasons — often tend to be more guarded. Using ZOOM, however, whether because they are in an environment (usually their own home) where they feel more comfortable or because they are less aware of being physically observed, parties often let their guard down. I’ve seen parties — as well as counsel — visibly react to certain arguments and comments in ways that were highly revealing, leading me to adjust my approach, just as I would if I had picked up a visual cue during an in-person mediation.

To be sure, it’s more difficult to see other forms of body language because our view is generally limited to the face and upper body. But reading facial expressions is fairly easy. In fact, I suspect my own facial reactions have sometimes been more revealing than I probably intended.

CONCLUSION

In a world that seems increasingly isolated and chaotic due to the pandemic, economic uncertainty and now nationwide protests, ZOOM provides a modicum of normalcy by keeping us connected. Thankfully, it also provides an effective way for mediators, attorneys and litigants to focus our sights on continuing to resolve conflicts when so many other things remain beyond our control.

As always, I would be pleased to assist you and your clients in the dispute resolution process. Please don’t hesitate to contact me if I can be of service.

Best regards . . .

Floyd J. Siegal