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Mediation in the Post-Pandemic World


By Kent Altsuler

Remember when mediations were in person? Since March 2020, I’ve conducted hundreds of mediations, and almost all of them have been by Zoom. Zoom mediations started because of health concerns, of course. Even though the coronavirus appears to be finally in check, it seems that this trend in favor of Zoom may go on forever. Aside from safety benefits, remote mediations are good because adjusters and representatives don’t have to travel. So even though some people prefer to share an actual conference room with their opponents during the general session of a mediation, Zoom is obviously here to stay. The purpose of this article is to discuss the traditionally important aspects of mediations, while taking into account the reality—and potential effect—of this development.

Purpose of the Mediation

The first thing to consider when formulating your approach to a particular mediation in a particular case is: Why am I mediating? Do I actually want to settle this case? Is there information that I’m only going to get during mediation? Do I want to eyeball my opponent in a non-deposition environment? Or am I only mediating because the judge ordered me to?

The limitations placed on human beings by Zoom must be considered. While they are now a mainstay, Zoom mediations can only do so much. After two years, I’ve finally come around to the notion that they can be almost as effective as in-person mediations when it comes to actual settlement results.  Even though parties feel less pressure with Zoom than they do in person (less pressure to settle, less pressure to move, and less pressure to be affected by someone else’s behavior), enough of my Zoom cases are settling that I now have confidence that Zoom is not a compromise killer in and of itself. However, it’s almost impossible to assess a party-witness by Zoom; in fact, many times they are not even visible on the computer screen. Additionally, it’s more difficult to meaningfully share or exchange documents over Zoom than in person. In many ways, a Zoom meeting is just a glorified phone call, which sometimes is not the ideal way to experience mediation.

Length of Time

Half day or full day? My rule of thumb is no half-day mediations if liability is an issue. If we’re only going to be talking about damages, a half day is usually sufficient. Zoom indirectly impacts this decision in a couple ways. One advantage to Zoom is that going back and forth between caucus rooms is as easy as a click of a mouse. But if your mediation is going to require conceptual conversations, those communications take longer no matter whether the mediation is in person or remote. Finally, if no pre-mediation negotiations have occurred and the parties are extremely far apart on the dollar figures, then the extra cost of a full-day session may be justified.

Opening

None of the participants in my mediations are doing full-blown, old-school openings anymore.  It’s really difficult to give an opening over Zoom with the same punch as one that is given in person. Also, with the advent of Zoom, there is an enhanced desire to not waste time with posturing and to just get down to the business of negotiating potential settlement amounts. Here is how I handle this new sentiment. Because a mediation is ultimately the attorneys’ show, I don’t insist that they pound the table or present a power point if they don’t want to. But in those cases where the parties’ confidential mediation memos are simply not enough to fully educate me on the case, I encourage them to stick around in the main Zoom room together so that we can have a conversation about the non-controversial aspects of the case (where the negotiations left off, what’s really going on here, the amount of alleged damages that have already been disclosed, etc.). This minor adaptation has proven to be crucial in resolving the most-difficult-to-settle matters that I’ve encountered.

Two Traditional Problems That Are Made Even Worse by Zoom

Over the course of the past two years, I’ve observed a small number of problems that are exacerbated by the use of Zoom: (1) problems created by the initial demands/offers; and (2) problems created by the misuse of brackets.

Let’s talk about initial demands and offers first. Every lawyer has his or her own negotiating style.  Some experienced attorneys swear that over time they’ve attained superior results for their clients by starting out negotiations with hyper-aggressive numeric positions. I’m talking about the attorneys who come out of the gate in a case lacking a real liability dispute with an offer of $2,000 when the other side has had two surgeries and incurred over $100,000 in medical expenses. I’m not going to be able to teach an old dog new tricks, but I have found that this is not constructive. It gets the mediation off track right away.

And with Zoom, it’s even harder than before to get it back on track. As we all know, Zoom can be impersonal. It permits lawyers and stakeholders to “attend” a mediation while actually working on other things. Ideally, the beauty of a mediation is that everyone is focused on the same case on the same day. It’s harder to make sure that’s the reality with Zoom. For this reason, I would recommend that initial demands and offers be at least slightly reasonable. It’s hard enough to keep someone interested by Zoom, and a demand or offer that feels like it’s not made in good faith can lose someone for the rest of the day.

The other problem that seems to be getting worse in the Zoom era relates to brackets. Lots of people hate brackets. Some don’t know how to use brackets. Brackets, which are utilized when normal back-and-forth negotiations break down, are devices that limit the parameters of a potential settlement going forward. For example, a defendant may propose a bracket “with $50,000 on the low end, and $200,000 on the high end” (which on the written page looks like this: “[$50,000/$200,000]”). That means that the case will, by definition, not settle in that particular round, but it might eventually settle somewhere in the $50,000 to $200,000 range. It also means that the defendant would be willing to go up to $50,000 if the plaintiff is willing to go down to $200,000. Coming up with a good bracket takes time.

The topic of brackets warrants a whole article of its own. I actually like brackets because they give all of us in the mediation something to talk about when things seem bleak, and the mere continuation of communication can sometimes lead to resolution. But I have found that with Zoom, one misguided bracket proposal can waste a great deal of time and mental energy—and lead the parties down the wrong rabbit trail. We’ve all had mediations where we’ve been left alone in our room for way too long; with Zoom, that problem is magnified. So if one side is working on its counter to a bracket proposal for 20 minutes, the other side may lose interest altogether. Although I always offer the lawyers input on potential bracket proposals, I’ve learned to mitigate this waiting problem by checking in on all the different Zoom rooms from time to time no matter whose turn it is in the negotiations. It can be difficult or even uncomfortable to stop a Zoom conversation to pop in on the other room, but it can keep the mediation from veering off in an unfruitful or hopeless direction.

Mediator’s Proposals

A mediator’s proposal is when—after the parties’ negotiations have stalled without resolution—the mediator picks a number that he or she has some reason to believe both sides might accept. After I issue the proposal, I don’t tell either side about the responses to it unless both sides accept my terms. When that happens, I obviously inform everyone that they have a deal.

Parties have requested more mediator’s proposals from me since mediations have gone remote. But the effect that mediator’s proposals have has not been altered by this new landscape. This is most likely because the issuance of the mediator’s proposal usually takes place after the mediation itself. For example, a normal situation for me is to (1) conduct the remote mediation; (2) facilitate negotiations; (3) get the parties as close to settling as possible during the mediation; (4) field (and eventually grant) a request from one or both sides for temporary impasse; and then (5) email around a mediator’s proposal the very next day. Most of my cases settle by mediator’s proposal. Even COVID can’t stop a good deal from getting done.

Conclusion

In summary, the following are my items of advice for making Zoom mediations as effective as possible:

  • Think about your purpose for the mediation in that particular case;
  • Determine the appropriate length of your mediation;
  • Either submit a thorough confidential mediation memo or do an opening;
  • Make a thoughtful initial demand/offer;
  • Only use brackets if you have been successful using them several times in the past; and
  • Consider the use of a mediator’s proposal.

Good luck at your next mediation.

 

Kent Altsuler is a partner in the Houston office of Lewis Brisbois. He has been certified as a mediator since 2011.



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