Over the past fourteen months, many of us have gone from reluctance to conduct mediation by video, to grudging acceptance of it as a temporary solution, to embracing it as a preferred means of mediating employment disputes.
Those who know me know that I have always been a bit of a techie. However, I had to pivot like everyone else in the spring of 2020. Fourteen months later, I can confidently say that video mediations are tremendously effective; if anything, my settlement rate is higher in video mediation than in-person. On the downside, I don’t get my steps in when I can move virtually from room to room.
Many of our colleagues have also expressed their view that we should continue to use video mediation even after we are “back to normal” and permitted to gather in a boardroom. Not for every mediation, but for many. After all, we have many tools at our disposal and there is nothing wrong with using the right one for each case.
From the perspective of counsel, the focus should not simply be on whether or how to participate in video mediation, but how to do it successfully. As I have often said, there is a big difference between attending at mediation and winning at mediation. Unfortunately, counsel often miss the opportunity to advocate strongly on behalf of their clients at mediation, treating it less seriously than they would a trial. That is a pity when you consider the number of cases that actually make it to trial.
Some Basic Considerations
We are now overly familiar with online meeting platforms like Zoom, Teams, and Google Meet. While they all have their advantages, I have been recommending Zoom for mediation as it 1) allows for breakout rooms, which are essential at mediation and 2) is the most commonly used and thus most familiar platform.
Most video mediations in employment law matters forego joint sessions, something which was common among the Employment Law Bar in Toronto even in pre-pandemic times. So breakout rooms allow me to easily keep the parties separate. I can use breakout rooms to meet with any participant or combination of participants: one party and their lawyer, one lawyer, all counsel, etc. Those “hallway meetings” we used to have can easily be recreated in Zoom.
Zoom and the other platforms also easily allow for documents to be shared, so I can “look over your shoulder” at a document just like I would in a meeting room.
When it comes to exchanging draft settlement documents, we can easily do so via email or by having counsel sit together in a breakout room, which is no different than what we used to do: counsel often either sent drafts back and forth via email from different rooms or sat together in a boardroom without clients to hammer them out.
Initially, one of the biggest challenges was executing settlement documents. I was trained from an early age not to leave a mediation until the settlement documents are signed (assuming we settle), lest one party develop buyer’s remorse overnight or the parties disagree over what the terms of the deal were. At my first video mediation, I spent the better part of the day working with both sides to reach a resolution they could live with and when we finally got there, I realized I had no plan for getting the deal signed. We did it the “old fashioned way”; documents were emailed, printed, signed, scanned, and returned. While that worked, it was not exactly efficient or environmentally friendly.
Since then, I have used DocuSign and HelloSign, both of which allow documents to be signed easily and efficiently on desktop computers, laptops, tablets, or smartphones. Once the parties have agreed on the wording, I can upload the documents, indicate which parties need to sign, initial, witness or otherwise handle the documents, and then specify the exact spots in the document that each party should be directed to, along with what they should do when they get there. It makes it remarkably easy for everyone to sign, wherever they are. And while I don’t fully understand the technical details, these platforms claim that they provide evidence of execution. According to Docusign:
Every signed DocuSign document comes with a certificate of completion that provides proof of the signing process to all parties of the transaction. This certificate includes information from the audit trail to establish the who, what, when and how of the document signing ceremony. DocuSign maintains complete, automated history of every viewing, printing, sending, signing, or declining activity on a document. Once a document is signed, the certificate of completion is attached as proof of the signing process to all parties of the transaction.
The biggest concern that I have with any hearing being conducted by video is the risk that confidentiality will not be maintained and that unknown parties will participate. It is not possible to know who is in the room with a party, and while this is more of a concern during a trial, it does create a risk during mediation since all participants to a mediation are required to maintain confidentiality. I require that all parties and counsel sign the mediation agreement, which includes a confirmation of confidentiality, and I often ask parties to confirm that no one else will be present.
The other concern is a lack of engagement. It is obviously quite easy for someone to multitask while mediating remotely, and there can be less of a connection when everyone is remote. However, having conducted many video mediations, I can say that I have not found this to be a challenge.
Of course, there can be technical challenges. Like anything else, preparation is critical. I will happily connect with counsel beforehand and review the mechanics to ensure that they and their clients are comfortable with how things will take place. Ideally, everyone should test their system beforehand. Systems go down, WIFI fails, and computers freeze or lag. I will always provide ways to contact me via phone and email in case the connection is interrupted.
What is not a concern: security. While some people expressed reluctance to use Zoom early in the pandemic, the reality is that 1) Zoom has added substantial security and 2) everyone should know how to set their security settings and 3) we have experienced anything that raised concern. It was far more likely for someone walking the halls of a reporting service to hear something they shouldn’t than to have a Zoom bomber. As someone recently said in a CPD session, if you think foreign governments are interested in this wrongful dismissal case…
Benefits of Video Mediation
The benefits far outweigh the concerns. Many of them have been discussed in other contexts; they include the convenience, reduced cost, and accessibility. In addition:
The Right People At The Table
I focus on employment mediation, and the reality is that in many cases, corporations do not send the true decision-maker to mediation. However, if they can participate by video, it becomes much more viable. In a recent case, in-house counsel for the defendant was based in Houston. She would never have flown to Toronto for the mediation of a wrongful dismissal claim worth somewhere in the range of $50,000. But because she was able to participate remotely, she did.
As a result, we did not encounter the all-too-common scenario where we learn that the company representative has limited authority and we have to call someone else to get more. In many cases, that person is unexpectedly unavailable or, if they can be reached, the company representative and their counsel insist on speaking to them without the mediator present. As we all know, this makes it far more difficult to reach a deal, since the decision-maker will not have the benefit of going through the process of mediation and understanding why we recommend a particular resolution. All of this can be solved by offering mediation by video.
The Right Frame Of Mind
Particularly in the case of employment disputes, one party is often less sophisticated and less comfortable with a “formal” process, especially if it occurs in a downtown high-rise. Add in the fact that in many cases, they have to travel a significant distance, fight traffic, and pay exorbitant parking fees, and they start off the day already stressed and anxious.
Conversely, with video mediation they can participate comfortably from their home. In one case, a woman in her 60s was able to sit in her living room with her dogs at her feet during the mediation instead of travelling several hundred kilometers to attend at King and Bay. She was relaxed, comfortable, and far more amenable to settlement.
Mediations sometimes come to an end because one party has to leave to attend to personal matters like picking their kids up from school. In a video mediation session, we can easily pause for a brief time while they do that, and then pick up where we left off. Similarly, no one has to catch a train or a flight back home.
“Convince me.” When I am your mediator, that is your job. The easier you make it for me to understand your case, the easier it will be for me to put your case forward in the other room. As I often say, at mediation, you want to “help your mediator to help you.”
I have frequently commented on the need for counsel to put forward their best case at mediation, but the reality is that in many cases, counsel miss the opportunity to be a zealous advocate. Instead, they go through the motions when it comes to advocacy at mediation, doing little more than copying their pleading into a mediation brief and then showing up at mediation without a firm grasp of the case and evidence.
Since very few cases get to trial, mediation is often the “main event” and the only real opportunity to argue your case in front of a neutral third party. Ideally, as counsel you should show your mediator how strong your case is and enlist them to advocate on your behalf.
One of the reasons that three hours is often too short for mediation is because the first hour is spent telling the mediator what the case is really about. Some counsel clearly use the same briefs over and over again, simply plugging in the name and key statistics of the parties and the relationship. Time will undoubtedly be wasted if I review the briefs, conclude that it is a straightforward notice case (since nothing else is mentioned), only to discover, after speaking with the parties, that there are complex issues such as just cause for dismissal, breaches of restrictive covenants, or harassment and bullying.
If you want to help your clients, take the opportunity to write a strategic, compelling brief. Give your mediator a clear picture of what that dispute is about, the issues, the facts and the evidence. It’s 2021, and briefs don’t have to look the same way they did back when I started practicing law. You can be creative with an electronic document; use hyperlinks, embedded videos and anything else you can think of to draw the mediator’s attention to the key points and evidence. At the same time, don’t use the kitchen sink approach and obscure your strong arguments by surrounding them with weak ones. Put your strongest case forward and get the mediator on your side early.
I have seen many briefs that were simply a copy and paste of the pleadings. While portions of the pleadings are certainly helpful, the reality is that pleadings are to contain allegations and not evidence. Since mediation does not involve formal delivery of evidence, it is extremely helpful to go beyond the pleadings and discuss the evidence. That does not mean attaching your entire Schedule A or submitting a 25 page brief that includes every irrelevant piece of material. Rather, counsel should highlight the key pieces of evidence and attach the key documents to the brief.
Since the idea at mediation is to engage in meaningful discussions, let your mediator know if there have been any meaningful discussions to date. I usually ask for a summary of the offers that have been made prior to mediation since that will give me some context, but I know that most counsel ignore this request. It is also helpful to know if there have been no settlement discussions and, if so, why?
While I always go into mediation with an open mind, the reality is that I do read the briefs and I do form a preliminary opinion based on them. The brief is your first chance to get me on your side, so don’t waste it. Furthermore, don’t waste the mediation by failing to have the evidence to support your claim. If there is documentary or video supporting your position, put it in your brief or, at the very least, bring it with you. There is nothing more frustrating than when I ask counsel for evidence of a key point and am told that “if the matter doesn’t settle, we’ll get it.” At that point, they have missed the opportunity to settle the matter favourably, and that raises a very important point: there is a big difference between settling at mediation and winning at mediation.
The old saying is that the best way to achieve peace is to prepare for war. Similarly, the best way to achieve a good settlement is to prepare for trial. Use mediation strategically and effectively by preparing as if you were going to trial. I know that if I am your mediator, I will want to see and assess the evidence. If you can convince me your case is strong, it will be easier for me to help you achieve a good settlement.
About the Author
Stuart Rudner is a leading Employment Lawyer with a growing ADR practice. Stuart is passionate about finding a resolution, and will work tirelessly and strategically to do so. He will adapt his approach to the circumstances, providing evaluative views but also exploring the underlying issues and other matters of importance to the parties when they are necessary to facilitate an agreement. Ultimately, Stuart recognizes that the parties have entrusted him to help them reach a resolution. While many mediators claim that they don’t “keep score”, Stuart does, because if there is no settlement, he has not succeeded.
Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.