This article was originally published on 19 March 2020, at the start of restrictions in New Zealand relating to COVID-19. Shortly after it was written, in March and April 2020, meeting by Zoom rapidly became familiar across most professional and commercial situations. Many mediations have now been conducted by Zoom. Zoom’s functionality has been updated and improved. However, the comments below generally remain relevant to planning and conducting a successful online mediation.
Yesterday I was involved in a commercial mediation in which the mediator, the parties and their lawyers were in five separate locations in New Zealand and Australia. Each party was physically in a different location from its lawyers. Each team of lawyers sat together in its office. The mediation was conducted over the internet.
How did it work? Overall, pretty well. Here are a few additional tips and wrinkles which emerge.
So what does it look like?
We used Zoom. Google Hangouts would be an alternative. There may be others. Here are some suggestions.
As those who have used Zoom will know, each person or group in the meeting is visible in a thumbnail live video window at the side of the screen. The app picks up who is speaking at any given moment and – assuming there is only one person speaking – makes that person’s video the main video on the screen. When that person stops speaking and someone else starts speaking, the former speaker reverts to a thumbnail video and the new speaker’s video takes over the main part of the screen.
This feels reasonably close to a conversation in a room in which all participants are physically present.
You can set up a ‘main room’ and a ‘break out room’ (or rooms).
All invited participants can join or leave the main room at will.
The mediator can invite a party or parties to enter a break-out room. The mediator can then either join those people in the break-out room or leave them alone in that room.
For example, if a party and that party’s lawyers are in different physical locations, the mediator can invite both the party and their lawyers into the break-out room for them to have a private conversation; and the mediator can join them in that private room.
A party can share a document on screen, either on a full-screen or half-screen/part-screen basis. This can be useful if making presentations to the other parties or referring to evidence or caselaw.
Zoom also has a ‘whiteboard’ facility.
It is hoped that the tips above will help internet-mediations to run smoothly. A few additional points:
Internet-mediation may not work in every case. But with good will from the participants and careful management, it can work well. As with anything, practice will improve familiarity with the process; and a can-do, optimistic attitude can work wonders.
Lastly, this article is meant to be helpful, but not exhaustive. We are all on a learning curve, and I’m sure the points above will merit further thought and development. I welcome comments, feedback and suggestions.