ADR CORNER
ADR CORNER
To Zoom or Not to Zoom - 2023 Version
ALFRED A . LASORTE , JR .
The pandemic is finally over ( more or less ) and law practice has moved to the " new normal ," where working from home is an option , but many lawyers have moved back to their firms ’ offices . Where does Zoom mediation fit in this new normal ?
We all got dragged into the Zoom age three years ago ( some , kicking and screaming ) as the pandemic wreaked its havoc . But within the past year , with restrictions loosened , in-person mediations have made a comeback of sorts . Today they constitute perhaps 20 % of my mediations . Initially , Zoom had a learning curve . My first mediations on Zooms seemed less effective than those in-person . Some people were frustrated by their inability to read opponents ’ body language across a web cam and computer monitor . From 2020 through 2022 , all but a few of my mediations took place on Zoom , but not by choice . We all just made do with Zoom , as in-person conferencing simply wasn ’ t an option .
Over time , people became more accustomed to doing business via teleconference , and Zoom mediations improved , at least in my anecdotal experience . I ’ d say that at this point , Zoom mediations are just about as effective and successful as those held in-person .
We ’ re all familiar with Zoom ’ s drawbacks - the lack of true , face-to-face negotiation , distractions allowing participants from home to zone out and lose focus . ( I ’ ve seen parties - and lawyers - called away from their webcams mid-mediation by everything from barking pets and crying babies to laundry chores .)
Zoom does have unquestionable benefits , though . Its screen sharing feature makes doc presentations easy . Scheduling is easier as well - that insurance adjuster in Nashville no longer needs travel arrangements for two days out of the office , just an internet connection and webcam . Participants appreciate being able to join in from their homes or offices , or those of their counsel . It can be much less expensive as well , without the need for any travel . And counsel attending via their office computers , with easy access to their staffs , makes preparation and circulation of settlement docs convenient and quick .
So , which should you choose for your next mediation - in-person or Zoom ?
In federal cases , Zoom is the court ’ s preferred method . The most recent version of Southern District of Florida Local Rule 16.2 , “ Court Annexed Mediation ,” amended last October , provides that if the parties cannot agree on whether to conduct a mediation inperson or via video conference , it takes place via video conference . " Unless the Court orders otherwise , the parties shall decide whether their mediation conference will be conducted in person or by video-conference and , if the parties cannot agree , the mediation conference shall be held by video-conference .” S . D . of Fla . Local Rule 16.2 ( a )( 2 )
State court rules show an opposite preference , namely , that mediation take place in person unless the parties stipulate to ( or the court orders ) a video conference . See FRCP 1.700 ( a ): " Absent direction in the order of referral , mediation or arbitration must be conducted in person , unless the parties stipulate or the court , on its own motion or on motion by a party , otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation .”
In most cases , I prefer Zoom . I ’ m happy to handle in-person mediations when parties and counsel prefer . But I ' m reluctant to give up Zoom ’ s many conveniences . In nearly every mediation I find the parties sharing pleadings , case law , and documentary evidence on screen . Many of my mediations involve real estate disputes . In a boundary dispute , for example , there is no better aid to analyzing a case ’ s strengths and weaknesses than sharing online aerial
PBCBA BAR BULLETIN 6 photos , depicting the locations of hedges , fences , etc ., over time . Zoom ’ s share screen feature is perfect for this .
The same is no doubt true in contested liability auto accident cases , for example , where accident scene and vehicle damage photos can be assessed together on everyone ’ s screens .
On the other hand , with Zoom you do lose a bit of the “ feel ” for other participant ’ s body language and other subtle clues to what they ’ re thinking that only a faceto-face conversation provides . In some cases , this could be the deciding factor as to whether to select Zoom for your mediation or not . But , in my experience , what you gain with Zoom usually outweighs what you lose .
Now that in-person mediation is back on the table as an option , consider the benefits and disadvantages of both alternatives and pick whichever is the best fit for your clients ’ and your cases ’ needs . And then go settle your case !
After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases , Mr . LaSorte now acts exclusively as mediator ( over 400 cases so far ) and expert witness through his own firm , Alfred A . LaSorte , Jr ., P . A . d / b / a LaSorte Mediation . ( www . LaSorteMediation . com ). Mr . LaSorte can be reached at ( 561 ) 286-7994 and Al @ LaSorteMediation . com .
For additional ADR tips and resources , go to https :// www . palmbeachbar . org / alternativedispute-resolution-committee .
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