Tips For Using Zoom For Remote Mediation
Since the beginning of the pandemic, I have been conducting remote mediations with Zoom. Based on my experience with Zoom, I have collected tips for mediators, attorneys, clients, and other persons who will be participating in remote mediations conducted via Zoom. While a number of other platforms have been used, Zoom still appears to be the one most commonly used by mediators in Southern California. Many of the tips, though based on my experience with Zoom, are applicable to other platforms. I invite readers to add to my list of "Tips" either by emailing me at [email protected], or by adding a comment to this post.
Before We Begin.
1. Check for Zoom updates.
Problem: Your Zoom app (also referred to as the “Zoom client”) is not up to date. Zoom is constantly issuing updates, improving features, adding features, and correcting flaws.
Solution: Periodically check to make sure you are using the latest version of Zoom.
2. Not everyone has access to Zoom.
Problem: The lawyers will likely have access to Zoom. Clients and in pro per parties may not have access.
Solution: Zoom is not the best solution for all remote mediations. Other platforms, or telephone, or email may be alternatives. And some mediations may need to wait till we can meet in person.
3. Not everyone can use Zoom.
Problem: Levels of sophistication can vary greatly. Additionally, persons with visual or hearing disabilities may not be able to work with Zoom.
Solution: Ask attorneys in advance about technical sophistication and any disabilities, and negotiate to find solutions.
4. Not everyone has a Zoom account.
Problem: Not everyone has a Zoom account, and not everyone has downloaded the Zoom app. If a participant does not have a Zoom account, some functionality is lost on the host’s side, e.g., the ability to pre-assign participants to waiting rooms.
Solution: Inquire, and urge parties to download Zoom app.
5. As a host, you need the proper license.
Problem: A free Zoom account allows you to participate in a Zoom meeting initiated by the host, but a free Zoom account only allows group meetings to last 40 minutes. The host will need more time to complete mediations.
Solution: Get a paid license. For most mediations, a license that costs $150 per year will be sufficient. If you want additional bells and whistles, check the pricing and features of different licenses.
6. Your internet connection may not be stable.
Problem: You get a message during the middle of a mediation “Internet Connection Unstable” and the screen freezes. Sometimes it is difficult to know whether the problem is with your connection or with another participant’s connection.
Solution: Avoid the problem. If you rely on wi-fi for your connection, move closer to modem and router; reset modem and router; get a wi-fi booster; consult with a teenager. Alternatively, set up hardwire connection with ethernet cable.
7. Bad lighting.
Problem: The person you are viewing appears as a dark silhouette.
Solution: Common cause of terrible lighting is backlighting. Do not backlight. Front light. Consider the use of a “ring lamp” to get even lighting.
8. Parties may need to test their Zoom connection with you.
Problem: Some attorneys (“old school”) may still be resistant to remote mediation.
Solution: Offer to pre-test Zoom with the attorney and client.
9. Careful with virtual backgrounds.
Problem: Some computers cannot use virtual backgrounds, and some virtual backgrounds look terrible, with ghostly images.
Solution: Check the zoom.support.us website or google “zoom system requirements for virtual background” to learn if your system has the technical specifications necessary to use a virtual background. Consider the image that you want to project during the mediation before you use a virtual background (Law office? View of Central Park? The Simpsons Living Room?).
10. Don’t botch the invitation.
Problem: It is all too easy to make small mistakes with an invitation, guaranteeing that not all the parties will join the meeting at the designated time. If you have many meetings lined up in your Zoom app meeting queue, it is easy to send an invitation to the wrong meeting. Invitations from Zoom designate the time zone, yet recipients may overlook that detail. If the invitation requires a password, people may overlook that detail. Attorneys may forget to forward the invitation to their clients. At the time of the meeting, participants routinely have trouble finding the invitation that was sent to them earlier. Attorneys may forget to forward the invitation to their clients.
Solution: Check every detail of the Zoom invitation before you send it. If you believe the parties are not familiar with Zoom, explain the details in an email: date, time, password, whether they will be placed in a waiting room, whether they will be sent to breakout rooms or a common room, and so forth. As a reminder, send the invitation more than once, including within an hour before the meeting.
11. Hatred can poison an opening joint session.
Problem: Some conflicts are intensely personal and emotional: for example, situations involving sexual harassment, assault and battery, opposing attorneys with a bad chemistry and bad working relationship, or adverse family members. If all the participants appear on the screen at the same time at the beginning, it is possible to “poison the well” from the beginning of the session.
Solution: Do not begin with a general session. Place everyone in a separate waiting room from the beginning and move them, one-by-one, to the “common room”, from which they can be moved, one-by-one, to the proper breakout room. Send a group message to the persons in the waiting rooms informing them of what you are doing, and telling the participants who you will meet with first (usually the plaintiff’s counsel and plaintiff). It is also possible for the host to pre-assign participants to designated breakout rooms when setting up the meeting. For details on how to do that, consult the Zoom website at https://support.zoom.us/hc/en-us/articles/360032752671 . In fact the Zoom website is a good source of information for anyone who wants to take a deep dive.
At The Beginning.
1. Beginning with a general session.
Problem: Placing each party in a separate breakout room before speaking to them, and speaking with them separately, is inefficient.
Solution: Manage the risk of a joint session. If you choose to begin with a joint session, you can mute the participants, you can tell them you are only going to provide an introduction, and you are only going to describe process, after which you will move the participants to breakout rooms. This allows the mediator to do a single introduction and is efficient. The physical distance required by the pandemic, and facilitated by Zoom, tends to lower emotional responses. However, it is not recommended that the mediator start with a joint session before informing the attorneys and if possible, discussing whether they anticipate that a joint session will be a problem.
Alternatively, if the host prefers to keep the participants separated from the beginning of the mediation, one can either pre-assign participants to designated waiting rooms, or admit each person, one-by-one, from a waiting room to the common room, speak with the participant in the common room, and assign the participant to a breakout room.
2. Who is present and in what capacity?
Problem: Unlike in a physical conference room, on Zoom, people who are present may be outside the boundaries of your screen and therefore invisible to you -- relatives, friends, business associates, translators. Additionally, it is important to know in what capacity each participant is appearing.
Solution: Take roll. If you are uncertain, ask in what capacity the person is appearing (Are you a representative of the insurance carrier? What is your title? What is the name of the carrier?). Ask if anyone else is present in the room with the participants who cannot be seen, and ask them to introduce themselves.
3. Who is talking?
Problem: It is easy to lose track on Zoom of who one is talking to. Often, you are meeting the participants for the first and only time. Some persons will appear, labelled by only their telephone numbers or something else other than their name.
Solution: Take the time to label or relabel each person’s screen picture accurately, replacing phone numbers and cute handles (Best Lawyer, Big Dog, Gunslinger, Zombie Avenger, etc.) with participants’ real names.
4. You need a Plan B for technical failures.
Problem: People do occasionally get kicked off Zoom. The most common causes are inadvertently pressing a “Leave” button or internet connection failure.
Solution: Exchange phone numbers even before you begin the meeting, or at the beginning of the meeting. Advise participants to first follow the original Zoom invitation instructions to return to the meeting, and if that fails, call the mediator. If the mediator doesn’t like giving out a personal phone number, the mediator can create a Google phone number. Sometimes audio degrades during the course of a Zoom meeting, and it may be possible to keep video on while talking by phone rather than by computer audio.
5. Don’t fail to explain the Zoom process.
Spend three minutes explaining the Zoom toolbar and the speaker/gallery views.
Problem: Too much noise, or audio feedback.
Solution: Mute yourself when not speaking.
6. Testing sound and audio.
Problem: Many participants are unaware that they can test their sound and audio by testing their speaker and mic on Zoom.
Solution: Point out that to the right of the mic icon on the Zoom toolbar, there is an up arrow (↑) that can be used to test sound and audio settings.
7. Stop videoconference.
Problem: Jeffrey Toobin and other video embarrassing video meetings.
Solution: Use the video button on the toolbar to not be seen. Better yet, imagine that whatever you do, someone can see you.
8. No recording.
Problem: It is easier to record a Zoom meeting than a meeting in an actual room.
Solution: Inform participants in writing that you will not record the meeting, and neither should they. That means: no recording of video, no recording of audio, no recording of chat, no screenshots -- unless everyone authorizes it.
9. The dangers of chat.
Problem: The chat utility is very convenient and easy to use, but can also be misused. A chat message can be sent to the wrong person and blow up a meeting.
Solution: One solution, available to the person with administrative privileges, who will be the mediator, or the IT administrator for the mediator, is to disable chat entirely. Often a better solution is to explain: (1) when everyone is in the common room together, a chat message can be sent to everyone, or to a specific person; (2) when in a breakout room, chat messages can be sent to everyone in the breakout room, or to a specific person in the room. Additionally, the parties should consider communicating by phone or text message rather than by chat. A less understood issue is that even chat messages intended to be private may not be private if the person with administrative privileges allows the host/mediator to have access to private chat messages.
10. Screen view/gallery view.
Problem: A surprising number of participants do not realize they have the option of seeing everyone or just the speaker. And some people do not understand when they can be seen and who can see them.
Solution: Simply explain the gallery/speaker views, and that when one is in a breakout room, one can only be seen by others in the breakout room.
11. Breakout rooms.
Problem: Some participants do not understand the breakout room process, how it keeps conversations confidential, and how movement among the rooms will be controlled.
Solution: Explain to the parties the role breakout rooms play to preserve confidentiality, and that the mediator has superpowers allowing the mediator to move participants to other rooms, to the Coffee Room, and to the Woodshed.
12. I need to speak to you now!
Problem: Participants may feel an urgent need to speak to the mediator when the mediator is not available, either because the mediator is in a different breakout room, or because the mediator has gone for a stroll.
Solution: Point out the Ask for Help button on the toolbar. And if that doesn’t work to bring a response, use the phone.
13. Do not discuss the merits in joint session at the beginning, though it may be safe to solicit questions about process.
Problem: An opening joint session, without constraints, can blow up a mediation: clients can express anger, attorneys may pound their chests, and attorneys or clients may start a hostile interrogation of adverse participants.
Solution: If you do decide to begin with a joint session, make it clear that you will only discuss process, and that there will be plenty of time to discuss the substantive issues and merits in a breakout room.
During The Meeting.
1. Kicked off of Zoom.
Problem: While Zoom is generally stable and reliable, participants occasionally get kicked out of meetings, and have problems reentering during the meeting.
Solution: Go to the Zoom settings on the Zoom portal (https://zoom.us/profile/setting) and enable allowing previously removed participants to rejoin. You can also end the breakout rooms and ask the person who has left to try rejoining. The latter approach is cumbersome.
2. Screen fatigue.
Problem: Sitting in front of a screen for a long time can become tedious and exhausting for mediators, attorneys, and other participants who lack sitzfleisch.
Solution: Encourage the use of phones, so that attorneys can summon you when they are ready to present a demand or an offer. The mediator can use the phone to notify an attorney before entering a breakout room.
3. Letting a party leave too early.
Problem: Nothing seems to infuriate participants more than letting one side leave the meeting while the other side is still participating in remote mediation. The side remaining will feel that its participants are being disrespected and negotiating with a black hole.
Solution: Be careful about letting one side leave a remote mediation before the other side. It can be difficult herding participants and engaging them again once they have left the mediation. Ideally, no one will leave the mediation until there is nothing left to be said. However, if you do permit one side to leave the mediation, and wish to continue speaking with the remaining side, prepare the remaining side for the fact that the other side must leave, explain that you are in phone communication with the other side, and make sure that you have a way to continue quickly communicating with the side that has left. It is best to be transparent and get the remaining side to buy into releasing the other side before you release one side of the participants from the remote mediation.
Wrapping It Up.
1. No plan for wrapping it up.
Problem: The attorneys and mediator have not thought about how to end a remote mediation and finalize an agreement.
Solution: Attorneys can be encouraged to prepare an electronic file of a proposed settlement agreement and release and bring it to the mediation. Also, after a negotiated resolution of the dispute, the mediator can meet with the attorneys and ask them to recite the deal points, and the mediator or the attorneys can prepare a deal point memo. Generally, the mediator will prefer that the attorneys prepare a deal point memo, though it is common for mediators who handle family law matters to do so. Deal point memos can be exchanged via email while the parties are still engaged in the mediation. The mediator should also address how the deal point memo or settlement agreement will be signed, which attorney will take the initiative drafting, and who will notify the court.
2. No way to sign documents.
Problem: Because the parties are not physically present, provisions should be considered for signing documents.
Solution: In practice, it is rare for an agreement to fall apart just because it was not immediately signed. However, buyer’s remorse can sometimes set in. A quick way to get signatures is to sign a paper document, photograph it with a smart phone, and deliver the file to the other side. The text of the settlement agreement and release would provide that signing the document in counterparts and delivering an electronic signature is sufficient. DocuSign, HelloSign, PandaSign, and AdobeSign are examples of software that can be used to exchange electronic signatures. Whether each product provides for the security and authentication necessary for electronic commerce and a binding digital signature is beyond the scope of this tip.
3. Notifying the court.
Problem: In a remote mediation, there is no reporter and no way to read the settlement into the record.
Solution: Still, the court must be notified of the settlement. In Federal Court, plaintiff and defendant file notice that the case has been settled, and the panel mediator files a Mediation Report, Form ADR-03, stating whether the case settled. With the filing of the Mediation Report, the parties are advised that they must notify the trial judge’s courtroom deputy clerk of the fact of settlement and promptly file documents regarding the final disposition of the case. In Orange County Superior Court, a settlement judge informs the parties that they must file a Notice of Settlement, Form CM-200, within seven days of settlement.
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Marc Alexander mediates state and federal lawsuits. He publishes the blog California Mediation and Arbitration and is a co-contributor to the blog California Attorney’s Fees. He is past chair of the ADR Committee of the Litigation section of the California Lawyers Association, and past chair of the ADR section of the Orange County Bar Association. Email: [email protected] or [email protected]. Tel: 714.852.6800.
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