ADR CORNER
Mediating in the Age of the Corona Virus
KENNETH D . STERN
Most Mediators and litigators prefer to mediate in person , rather than by ZOOM . However , I have mediated a number of cases virtually , because one party or attorney is concerned about the risks inherent in an inperson mediation , and you can rest assured that a ZOOM mediation can be just as effective in settling a case . Most experienced Mediators are quite capable of conducting an effective virtual mediation .
With everyone on-screen , you can see the facial expressions , tone of voice , and much of the body language of everyone , and little is lost by mediating virtually . Even if your client is not present with you in your office , a virtual mediation conference will enable you and your client to have confidential discussions , whereby you and your client can converse without the other side or even the Mediator hearing you .
A virtual mediation conference provides separate breakout rooms , permitting both or all attorney-client pairings to converse in total confidence , and to caucus with the Mediator without the other side hearing or seeing you . And of course , joint sessions can be had , with everyone present . In addition , a virtual mediation can greatly reduce the costs of attending an in-person mediation . It eliminates the expense of having clients , insurance adjusters , corporate counsel , and other corporate representatives fly in and generate the costs of airplane fare , hotel lodging , and meals attendant on many inperson mediations .
What are the technical requirements to participate in a virtual mediation conference ?
Don ’ t worry , the Mediator will do all the work to set up your virtual mediation . In advance of the mediation date , the Mediator will advise you of which breakout room has been assigned to you and your client . ( I typically put the Plaintiff and his / her counsel in Breakout Room No . 1 , the main Defendant and counsel in Breakout Room no . 2 , and so on , if there are other parties .) Your Mediator will send you an email containing : ( a ) a link for you ( and your client and any other representatives of your party , to use if they will not be present in your office ) to click , to “ check in ” with ZOOM to join the session ; ( b ) the Meeting ID and the PassCode which you and your client will need to enter to join the session , and ( c ) an “ Activation Code ” which you and your client will use to enter the Breakout room assigned to you both .
What if you can ’ t get sufficient hearing time to resolve objections so that you can complete discovery before mediation ?
Now that our Circuit Judges are resuming non-jury trials , the number of time slots available for hearings on motions will diminish , perhaps almost to the point of evaporating , as our Judges try to reduce the backlog of cases that did not settle at mediation . You have options here , and you may want to use a combination of them . Be creative : try to get agreement on pending motions or on issues therein ; try to reduce a long motion so that it can be dealt with at a UMC ; and stipulate to matters that are not in serious dispute .
If you have a slew of motions raising objections or discovery issues that have to be ruled upon before you can depose witnesses or the opposing parties , try to get your opposing counsel to agree to using a Special Master ; that way , you can arrange to have all discovery issues heard and tentatively ruled upon . The Special Master will send a Report and Recommendations to the Judge , and both parties will have the opportunity to file Exceptions . Usually , these are few , and the Judge can then enter rulings on every discovery issue which was not excepted to ; this can save many months of frustration .
In one case in which I served as a Special Master , the Judge had advised the attorneys that it would take 12-14 months to have all the preliminary discovery issues heard and resolved . After receiving and reviewing all the pending motions to compel , objections , assertions of privilege , etc ., I then conducted two days of back-to-back hearings , some evidentiary with testimony , and filed a 51- page Report and Recommendations . Only one counsel filed Exceptions , and these were few . The Judge entered her rulings , adopting all of the Recommendations that were not objected to , and considering the few others in light of the Exceptions filed . More than a year was saved in resolving all these motions and the issues raised ; the expense of holding all hearings before a Special Master , while not small , was far less expensive than 14 months ’ worth of hearings would have cost . And the parties could now proceed to take all the depositions which had to await resolution of these issues .
Corona Virus be Damned : Full speed ahead !
Virtual mediations , like virtual hearings and even virtual nonjury trials , are now a part of the fabric of legal practice . And even if there are no concerns about the virus , virtual mediations are increasingly being used to save the expenses of everyone flying in to attend in person . Don ’ t hesitate to avail yourself of this worthwhile alternative to inperson mediations .
Kenneth D . Stern is a retired Circuit Judge who served here in the Fifteenth Circuit . Prior to becoming a Judge , he was a Trial Attorney with the U . S . Department of Justice , and an Assistant U . S . Attorney here in the Southern District of Florida . He then moved to Palm Beach County and practiced both federal and state litigation , before being appointed to the Bench by Governor Jeb Bush . Since his retirement from the Bench , Judge Stern has been serving as a Florida Supreme Court Certified Circuit Mediator , AAA-approved Arbitrator and Special Master . He can be reached at kdstern @ gmail . com or ( 561 ) 901- 4968 .
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