Mediation is a form of alternative dispute resolution available to injured parties involved in a dispute over liability or case value. Mediation is a type of negotiation aided by a disinterested party. Unlike litigation, where a judge decides, the parties and mediator typically drive the mediation process by determining when and where the mediation occurs, who is required to be present, and who pays for the mediator’s services. Mediation can be requested by the disputing parties, required by a contract, or ordered by the court.

Mediation is Not for Everyone

Mediation is not always the best option for every dispute. In fact, it can damage the potential value of a claim or even the litigation value. If the claim is worth more than the available funds, i.e., mediation could be detrimental to resolving the dispute for full value more than the policy limits available. Agreeing to mediation can signal to the opposing party that you are open to accepting less than the policy limits. This is not the signal that you want to send to the opposing party if the value of the claim is more than the policy limits.

Another type of claim where mediation should be avoided is when the opposing party has failed to negotiate or offer a good faith settlement. At the very least, the claim is not mature or ready for dispute resolution, or simply the opposing party has no interest in a prompt resolution. Either can result in a mediation that is a waste of time and money. My rule of thumb is that I will consider mediation if there is adequate funding for the settlement, the other side had agreed to pay or at least split the cost of mediation, and there has been a good faith offer to resolve the claim.

When the parties have negotiated in good faith and are willing to split the mediation cost but are reluctant or incapable of settling a dispute, mediation should be a tool that should not be overlooked. Mediation can be a quick, economical, and more straightforward option than litigation. Mediation is generally a brief, organized, and goal-oriented process. If a resolution to the dispute is not reached in mediation, the parties may carry out their claims in other forums.

The Role of a Mediator

The disagreeing sides work with an impartial third party, the mediator, to settle their disagreements. The mediator helps with the trade of information and negotiating. The mediator helps find areas of agreement and curb unlikely prospects. They offer innovative resolutions and assist in preparing a final written agreement. The mediator’s role is to clarify matters, convey information between the parties, structure topics, and delineate the problems.

Mediation During Covid-19

Like everything else, mediation has changed due to the Covid-19 pandemic. We could very well be on the precipice of video mediation, becoming the norm rather than in-person mediation. The pandemic has wreaked havoc on the courts, causing unprecedented delays that may be here with us for many years as the courts re-open and slog through the backlog. Mediation can sometimes be the answer for parties seeking justice and resolving their disputes in a timelier fashion than the courts can currently provide.

For the parts of the country still facing mandated quarantines, the at-risk population, and those who want to limit their potential exposure to Covid-19, mediation is a viable alternative. In fact, the almost ubiquitous application called Zoom has shown how it can be a powerful tool for mediation when parties are unable to get together in the same room.

What is Zoom?

Zoom is a virtual collaborative application that can bring mediators and disputing parties together in a virtual environment to get more done. It is a reliable cloud program for audio-visual, speech, subject sharing and has a chat feature that runs on cellphones, tablets, computers, and telephones. The application has even been used by the Pentagon for meetings about non-classified subjects.

While some people were fighting over toilet paper in the stores. A few lawyers and mediators worked on the broad-based Zoom platform to better serve as a functional mediation tool. It was found that the use of incorporated break-out spaces on the Zoom platform, disabling of the public chat facet, and relaying confidential Zoom invites with straightforward instructions and precautions was needed to enhance the Zoom mediation experience.

Once Zoom had been properly configured for mediation, party litigants were happy that they still had the option to go forth in working to resolve their disputes without potential Covid-19 exposure. The settlement rate for mediations using Zoom is somewhat higher than face to face mediations. At first, Zoom mediation was thought to be a short-term solution but has now become a new highly sought-after way of resolving cases.

The Future of Zoom

Some lawyers and mediators are resistant to change or technology that they don’t completely understand. But with the changes caused by the pandemic, many have reluctantly embraced using zoom mediations. It is quite possible that Zoom or some other cloud-based mediations will become a favored method for years to come. The ease of access expediency of Zoom mediations will allow access to alternative dispute resolution sooner than later.

How To Prepare for a Zoom Mediation

We have found that you can stack the deck in your favor of getting a positive result when you elect to do a Zoom mediation. The following point will help achieve the result you want from a Zoom mediation:

• Download the Zoom application to your device and familiarize yourself with the feature, controls, and interface. Practice using it with your distant friends or family. In cases we handle, our office will do this part.
• Sign in at least 15 minutes to the mediation starting and test that the video and audio are working as expected, and the camera is suitably centered and tweaked. Test the video and audio the day before to ensure that you have time to procure a back device if necessary.
• Have all records, case law, notes, and reference material within your reach. It is much easier if you do not pause or get up from your chair for the duration of the mediation.
• Consider using headphones with a boom microphone. There will be several parties at the conference. It is much simpler to hear and focus if you use one headphone. People will be better able to hear you with a good microphone properly positioned.
• Ensure that the running device is plugged into a power source and not just running from the battery. You have a computer and phone charger handy. Mediation can take longer than expected, and prematurely ending a mediation due to a party unexpectedly dropping out can be frustrating.
• Have a glass of water within arm’s reach during the mediation.
• Once you join the mediation, change the screen name to the proper name.
• Make sure you are connected through a quick and stable connection. We recommend that it be at least 1.5 megabits per second.
• Go to a location to ensure that you will not be interrupted, including interruptions from pets. A locked room that is quiet is best.

Watch YouTube Video: 2020 Online Mediation. The video below provides training for those who will attend mediation through Zoom.

Zoom mediation might not be the best option for every dispute and party, but it does warrant careful consideration. It has its advantages, but it is not without its concerns. Some practitioners have found that Zoom mediation has been hampered by technological flaws. These flaws can include freezing, delays, drops, and pixelation issues. These can be distracting to the participants. Some have found that body language is imperfectly conveyed by the Zoom application. Conversely, some practitioners have actually found this to be beneficial to dispute resolution.

If you are a party to a dispute that mediation could help resolve, ask your attorney about mediation through Zoom.

Sacramento Personal Injury Lawyer

I’m Ed Smith, a personal injury lawyer in Sacramento. If you have been seriously injured in an accident due to someone else’s negligence, please reach out to our experienced injury attorneys at 916.921.6400 or 800.404.5400 for free, friendly advice.

We’ve helped numerous Sacramento residents and individuals in surrounding areas with their car accident, traumatic injury, and wrongful death cases since 1982.

We are members of the Million Dollar Advocates Forum and the National Association of Distinguished Counsel.

See our client reviews on Avvo, Google, and Yelp, and our past cases on our Verdicts and Settlements page.

Image by Gerd Altmann from Pixabay

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