Oklahoma Bar Journal
Mediation in the Time of a Pandemic: Preparing for the ‘New Normal’ of Online Mediations
By Amy J. Pierce
When I circulated a final term sheet on March 4, 2020, to 15 mediation participants and shook their hands as they left my conference rooms, I had no way of knowing that the practice of law, and in particular the practice of mediation, would be so drastically changed within just a few short days. On March 6, the first case of the novel coronavirus (COVID-19) was confirmed in the state of Oklahoma. By March 15, eight COVID-19 cases had been reported in our state, and Gov. Stitt issued Executive Order 2020-07 declaring a state of emergency in all 77 Oklahoma counties. The governor issued his Fourth Amended Executive Order 2020-07 on March 24, which ordered all businesses located in a county experiencing the community spread of COVID-19 and that were not identified as being within a critical infrastructure sector, to close.
Legal services and lawyers were exempted from the executive order a day later, but that did not mean the business of law could proceed as usual. Oklahoma lawyers were advised by the OBA to follow the Centers for Disease Control’s guidelines on social distancing and were encouraged to work from home in order to meet their clients’ needs and maintain personal safety. The Oklahoma Supreme Court issued its own emergency orders, cancelling civil and criminal jury trials through July 31, 2020, and suspending case, statutory and order deadlines for March 16 through May 15, 2020.1 In short, the justice system had effectively ground to a halt by the end of March 2020.
Lawyers were faced with a new reality – figure out how to conduct depositions, meetings and hearings online or not at all. The same was true with respect to the practice of mediation. Many lawyers had previously mediated via telephone with federal circuit appellate mediators and had heard of “online mediation,” but few had actually participated in or conducted a mediation solely online using video technology.2 When it became apparent that in-person mediations were not possible for the foreseeable future, many mediators immersed themselves in numerous different online videoconferencing platforms, such as Zoom, Microsoft Teams, Skype, Google Meet or Webex. While mediation conference rooms remained empty throughout the spring and early summer of 2020, mediators and lawyers alike were busy navigating the world of videoconferencing technology and conducting mediations from their homes and offices. In just a few short months, conducting online mediations has now become the “new normal,” and based upon the continued expected delays, travel restrictions and court closures, this “new normal” may be here to stay.
Both federal and state courts are continuing to limit in-person hearings and further suspend jury trials. COVID-19 has undoubtedly added months, if not years, to the time it takes for parties to normally obtain a jury trial date. It is reasonable to assume that mediations will increase in light of continued jury trial delays and learning to adapt and use online mediation technology is necessary if lawyers want to continue to serve those clients who have engaged them during this unprecedented time.
While in-person mediations have cautiously resumed with proper protocols in place, many practitioners are likely to find that once the pandemic ends, their clients, insurance adjustors and out-of-state counsel may want to continue to remotely participate in mediations. As mediators, our hope is that someday COVID-19 will run its course, and we will return to the normality of in-person mediations. But the reality is many clients and practitioners have now experienced the efficiency and cost savings of online mediation, and it is likely that online negotiation skills will remain an important part of an effective mediator’s and lawyer’s tool belt.
NOW IS THE TIME TO INVEST IN TECHNOLOGY AND LEARN TO USE IT EFFECTIVELY
According to recent data from the International Telecommunication Union, by the end of 2019, 4.1 billion people, or 53.6% of the world’s population, were using the Internet.3 With social distancing being implemented, a sharp rise in internet communications has occurred. Since COVID-19 integrated itself into our lives in March 2020, video and audioconferencing companies have seen a tremendous increase in users. Zoom, one of the more popular providers, reported in April 2020 it had increased from more than 10 million daily participants in December 2019 to more than 300 million daily participants by April 2020.
With COVID-19 now emphasizing the need for a digital role in almost every aspect of our lives, we as lawyers must familiarize ourselves with technology platforms that allow us to continue to practice our craft. Indeed, under the Oklahoma Rules of Professional Conduct,4 lawyers are required to provide competent representation to their clients, which includes maintaining competency in relevant technology. Spending time researching and working with a videoconference platform is crucial for attorneys. Zoom and Google Meet offer easy to follow video tutorials on their website that are fairly self-explanatory, and there are numerous online resources that contain directions for using this technology in mediations.5 In the early days of the pandemic, mediators in my office routinely conducted their own online “test” mediation runs with family and friends using the different platforms so they were familiar with the technology prior to using it in mediations. It is likewise recommended that lawyers spend time working with the different platforms to become familiar with them and engage in a test prior to any online mediation. Using these various platforms is not complicated, but it does require practice.
It is also important that lawyers invest in quality technology to conduct online mediations. Obviously, participants need a solid and reliable internet connection and a computer with a camera and microphone. Many online participants are using laptops with built in cameras and microphones, but cameras can also be added to traditional desktops, preferably with features like full HD video, a microphone, autofocus, light correction and 1080p resolution. With COVID-19 likely lingering for an indefinite amount of time, lawyers should consider taking the time now to invest in and explore videoconferencing technology.
KEEP SECURITY CONSIDERATIONS IN MIND
In the first few post-pandemic weeks when the world was attempting to adjust to a new online workplace, horror stories circulated about online video security. “Zoom bombing” became a popular term used to describe the process of hackers “hijacking” a videoconference call. Numerous security measures have since been implemented that allow a mediator to ensure videoconferencing confidentiality and privacy.6 For example, Zoom allows a mediator to create passwords for mediation participants, prohibit participant recordings of the mediation and “lock” the mediation against uninvited guests once all participants have arrived in the online mediation. Zoom also provides an option allowing the mediator to create a waiting room so that mediation participants can be screened prior to being placed in their own separate conference or “break-out” rooms. Likewise, Google Meet will allow the mediator to mute or remove participants and to approve requests made by participants to join the conference prior to their entry.
While the various platforms provide security measures the mediator can utilize, practitioners also have an obligation to ensure they and their clients take steps to maintain the confidentiality of the mediation process. Pursuant to the Dispute Resolution Act, District Court Resolution Act and the Choice in Mediation Act, communications made during the mediation relating to the subject matter of the dispute are considered confidential communications.7 Lawyers should stress the importance of this confidentiality to their clients prior to the online mediation, and lawyers and participants alike should consider the privacy and security of their surroundings in order to take steps to confirm that no unauthorized persons or inadvertent eavesdropping occurs during the mediation process. Generally, clients should be advised to only participate in online mediation from a private location, such as their home office, with a secure (non-public) internet connection.8
PRE-MEDIATION PREPARATION IS ESSENTIAL
Pre-mediation telephone or videoconferences between the mediator and lawyers for the parties are crucial prior to conducting an online mediation. Specifically, the parties should explore during these conferences whether there are any specific terms that can be agreed upon prior to mediation. For example, it is common that parties can agree on release language or confidentiality language prior to the date of their mediation. Additionally, spending time preparing and circulating a form term sheet between counsel prior to the mediation with some basic, agreed-upon language will obviously speed up the mediation process and make the exchange of the final term sheets much more efficient.
Lawyers should also consider providing their statements to opposing counsel prior to the mediation. Exchange of mediation statements by the parties prior to mediation is not necessarily standard practice in Oklahoma, but with many cases proceeding to mediation with limited discovery due to COVID-19 delays and restrictions, exchange of the statements by both parties will assist in clarifying issues prior to mediation and is helpful to the mediator.
Prior to the online mediation, lawyers should also understand and plan how they will obtain their client’s signature on a final written term sheet. Some mediators will email a term sheet to the client and lawyer and have the client print, sign, scan and return a signed copy of the term sheet for distribution to opposing parties, but this is not always possible. Many clients are unfamiliar with such technology, or the parties may find there is a technical glitch that prevents the client from returning the signed term sheet. A lawyer can bind a client to a settlement agreement with the client’s consent, so that the lawyer’s permitted signature on the term sheet may be sufficiently binding.9f digital signatures.
Oklahoma has adopted the Uniform Electronic Transactions Act (UETA), 12A Okla.Stat. §15-101 et seq., which may allow an electronic or digital signature to bind the parties to a contract in certain circumstances, but the parties must be in agreement to conduct such transactions by electronic means.10 To avoid signature pitfalls, lawyers and mediators should consider entering into an agreement among the parties to the mediation, acknowledging the mediation is being conducted by electronic means and providing the parties may exchange electronic or digital signatures on any final mediation term sheet.11 Thinking through and preparing for how the signatures will be obtained at the end of a successful mediation will ensure a smoother online resolution process.
ONLINE COMMUNICATIONS REQUIRE EFFORT AND PRACTICE
Eye contact is a foundation for communication in humans, and direct eye contact in a mediation is essential for both the mediator and the participants. However, making “virtual” direct eye contact in an online mediation is at first an unnatural process. A participant must speak while looking directly into the camera, so the other parties view the speaker as looking them in the eye. However, a participant must look at the screen in order to view another speaker’s eyes. This process is awkward at first and takes some practice and adjustment. Additionally, hand gestures and facial expressions can appear to be exaggerated by video and can be distracting. An eye roll during a videoconference is much more noticeable than an eyeroll across the space of a conference room. Background noises are also harder to filter out during online mediations. Participants should turn off notifications on their computers, phones or other devices prior to logging onto the mediation. Most applications will allow you to “mute” yourself while others are speaking, which will cutdown on background interference.
A helpful tool to prepare for online mediation preparation is the 10th Circuit Court of Appeals’ “Videoconferenced Arguments Guide.”12 The guide provides practical tips for videoconference oral arguments that translate well into online mediation. Another excellent resource is the Harvard Business Review video titled “How to Make Virtual Meetings Feel More Real.”13
We as mediators are hopeful that we will return to the world of regularly scheduled, face-to-face mediations, but lawyers should be prepared that our “new normal” may now consist of some form of online mediation practices and should take steps to acclimate themselves and their clients to these possible changes.
ABOUT THE AUTHOR
Amy J. Pierce is a partner at the Oklahoma City law firm of Hampton Barghols Pierce PLLC. She serves as a mediator and an arbitrator, and her practice is comprised of a broad range of civil litigation, including employment law and business disputes. Ms. Pierce has received mediation training through Harvard University.
- SCAD No. 2020-24, was issued by the Oklahoma Supreme Court March 16, 2020, and it canceled jury trials for 30 days and suspended statutory, rule or order deadlines in all civil, juvenile or criminal cases for 30 days. The court modified this order in SCAD No. 2020-36 on April 29, 2020, extending this suspension period from March 16, 2020, to May 15, 2020, and rescheduling all civil and criminal jury to dockets to the next available docket after July 31, 2020.
- “Online mediation” is not to be confused with “cyber mediation.” A “cyber mediation” is a fully automated system using software to create a “range” of settlement for the participants. Domke on Commercial Arbitration, §3:33.
- Rule 1.1, Comment 6, of the Oklahoma Rules of Professional Conduct requires that lawyers should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
- In April 2020, the Office of Dispute Resolution for the Supreme Court of Michigan published a guideline called Using Zoom to Conduct Online Mediation: Considerations and Resources for Community Dispute Resolution Program Centers, which provides an excellent tutorial of how to use Zoom as a mediator and includes links to several other helpful articles. courts.michigan.gov/Administration/SCAO/OfficesPrograms/ODR/Documents/Zoom%20Online-Mediation%20Considerations%20v1.pdf.
- Zoom 5.0 was released April 27, 2020, and is touted as using the most secure encryption standards.
- 12 Okla.Stat. §§1805, 1824 and 1836.
- Mark D. Zukowsi, “Online Mediation Goes Mainstream,” 56 Ariz. Att’y 38 (2020).
- Oklahoma law requires express authority for attorneys to bind their clients to settlement agreements. Hays v. Monticello Retirement Estates, LLC, 2008 OK CIV APP 74, ¶8, 192 P.3d 1279, 128; Scott v. Moore, 1915 OK 850, ¶1, 152 P. 823, 824 (attorney has no authority to settle a lawsuit without the specific authority of his client).
- Id. at §15-105(b), Rich v. DCT Enterprises of Oklahoma, Inc., 2018 WL 9816098 (W.D. Okla. June 5, 2018) (party who digitally signed an arbitration agreement was compelled to arbitration pursuant to the UETA); Kluver v. PPL Montana, LLC, 2012 MT 321, 293 P.3d 817 (email sent by party’s lawyer accepting terms of a mediation agreement constituted the party’s “electronic signature” on the mediation agreement, pursuant to Montana’s version of the UETA).
- Cynthia Ford, “It Was Late; The Printer Was Down,” 38 Mont. Law. 32 (March 2013) (providing form language for use of electronic signatures in mediations).
- See Videoconference Arguments Guide, The United States Court of Appeals for the 10th Circuit, www.ca10.uscourts.gov/clerk/videoconferenced-arguments-guide.
- Harvard Business Review, “How to Make Virtual Meetings Feel More Real,” (April 6, 2020) www.youtube.com/watch?v=zchEneW2890.
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 9 (November 2020)