Virtual Mediation Tales and Tips From Both Sides of the Pond
Submitted by Mariya Uzunova and Jim Lussier on behalf of Primerus International Young Lawyers Group
Business meetings, court proceedings, family reunions, even weddings, are all taking place online these days for reasons we know all too well. The chances are that your next mediation will be conducted virtually. Two Primerus lawyers on opposite sides of the Atlantic Ocean write to share their recent experiences with online virtual mediations.
Mariya Uzunova works to resolve her clients’ disputes from the east side of the Atlantic. Based in London, she participated in a virtual mediation, and has a number of insights to share:
Our clients had a claim against a company and its directors arising out of the repudiation of a settlement agreement compromising a claim for consultancy and other fees due under a consultancy agreement. The settlement agreement was evidenced by email correspondence between the parties and provided for the allocation of additional shares in a newly created holding company.
Although the necessary documentation was executed by our clients in accordance with the terms of the settlement agreement, the additional shares were never allocated. In addition, our opponents purported to be entitled to acquire the shares, previously allotted to our clients, for a derisory sum. Draft particulars of our clients’ claim seeking performance of the settlement agreement, or alternatively damages, were sent to the intended defendants, following which the parties attended an unsuccessful mediation.
This was the first time I attended a virtual mediation as it was at the start of lockdown in April 2020. It was clear, however, that we had a very competent mediator who made sure the process went seamlessly. Our clients were familiar with the use of Zoom for business meetings and were located in separate, private rooms with high-speed internet. The mediator organised a test call a day before the planned Zoom mediation which both sides attended. This helped immensely to clarify the parties’ expectations for the real session.
When on the test call, the mediator explained to us that we would initially be held at a “waiting room” from which he would “collect us”. He explained that during the mediation, each side would have a private “breakout room” facility where we could discuss matters without the mediator’s involvement or the other side listening in.
Eight people joined the Zoom call, excluding the mediator. We were all based in different parts of the country. My supervising partner prepared the opening submission which set out the issues clearly and to the point. Following this, we were separated out in our relevant “breakout rooms”. The mediator, being the host, jumped in and out of each breakout room, trying to narrow down the issues between the parties.
The mediation progressed slowly throughout the day. It eventually transpired that our opponents did not join the mediation with the intention to resolve the dispute and were making proposals which were never going to be acceptable. Our client felt strongly about the way he had been treated and about the work he had put into the company and the return he deserved for that work. In such a context, making settlement decisions is never easy. As his solicitors, we were there to carry out a reality check as to what was reasonable and realistic and what was not.
Even though the mediation was ultimately unsuccessful, the technology worked smoothly, the mediation ran without any technical issues, and allowed for all the parties to attend from the comfort of their homes. Further, the mediation assisted with narrowing down the issues and sifting through the emotions to reach logical conclusions. If it were not for this mediation, we would not have been able to open such a line of communication with our opponents and ultimately settle the case.
The aspect which I felt was missing from the entire process was human presence in the same room and the lack of clear body language. Despite us being able to see each other over the screen, we were not able to fully be present for our client the way we would be if we were in the same room. I could say the same in relation to the mediator, the process was efficient yet detached. There is research which suggests that only 7 percent of meaning is communicated verbally, and 55 percent is communicated through body language. The lack of this inevitably affects people’s reactions during mediation and the way they feel about the people they speak to.
Nevertheless, technology has allowed us to effectively make a step towards resolution of the conflict without having to spend time and costs on travel by simply having a stable internet connection and a computer.
Jim Lussier hails from the west side of the Atlantic, practicing law in Orlando, Florida. In October 2020, he hosted an online Zoom mediation. While the parties did not settle the case that day (it took another two weeks of discussions), it was still an effective attempt. Prior planning and an understanding of the technology made it work. Jim explains:
Two construction companies were in a dispute over a fire/crash/rescue station project. The general contractor wanted $1.2 million because the project was significantly late being completed. The subcontractor wanted its final payment of $600,000.00 for a “job well done.” Ten people (four of them were attorneys) participated via Zoom from seven different locations in four states. The Mediator was at his home in Virginia.
We started with everyone looking at everyone else on one screen in the main session. After more than one hour of opening statements and general discussion, we separated into breakout rooms – one room for each party. The Mediator then electronically “entered and left” each breakout room, engaging in the ping pong diplomacy known as mediation.
I knew that this was probably my only chance to speak directly to the other client. I also knew that because I went first, I had the opportunity to control the information that the Mediator needed to understand our position. I prepared a PowerPoint presentation with 28 slides and a written opening statement that my client pre-approved, mainly for tone. We did not want to throw bombs, but we needed to be clear and firm.
The opening statement made it clear we were there to negotiate and resolve the case. Although that seems obvious – after all, it was a mediation – we did not think the other side was ready to settle. The slide show allowed me to educate the Mediator on the relevant physical aspects of a construction project he had never seen. I then presented excerpts from contracts, schedules, and correspondence to make major points favoring my client’s position. My purpose was to “control the room,” and, because of the technology, I was able to do that. Zoom’s “share screen” feature worked very well. I had the floor and was essentially uninterrupted. When everyone is looking at the same thing and it is what I want them to see, persuasion opportunities exist.
Rather than describe more about the substance of the negotiations, I want to describe how the technology worked and affected the mediation.
Hosting: because my firm had the Zoom professional license, I scheduled the meeting and was the initial Host. It was my intention to make the Mediator a Co-Host. Unfortunately, the Mediator was unable to use the audio connection through his computer, even though the video connection worked perfectly. Zoom provides a phone-in link as a backup, so the Mediator communicated through his cell phone. This was disconcerting for a second, but we soon discovered that there was no sound quality loss, and there was no time lag between the Mediator’s lips moving and the voice being heard. However, this forced me to be to remain the Host throughout the 8 hours of mediation. As Host I controlled the Mediator’s transit from one breakout room to the other instead of letting him do it himself as Co-Host. He had to call or text me every time he wanted to change rooms. I got faster at it each time, but I kept waiting for his cell phone battery to die.
Other tips: practice with your client before hand. My clients were not used to Zoom. I coached them on placing the camera close enough so that their faces were not too small to see, and so their voices could be heard. If you want your expression to be observed, your face must be well lit. The background should not be glaring sun through open windows. Zooming from home has special treats: the Mediator’s dog visited us a couple of times. Try to eliminate distractions and interruptions from outside your video cocoon.
Without the preparation of the PowerPoint and practicing, the other glitches would have been harder to handle. Overall, however, the Zoom mediation seemed just as effective as an in-person mediation. We did not settle the case that day, but thousands of dollars were saved in travel time and expenses. As professionals, we must expect that the post-COVID world will continue to use virtual technology. I am certain my next mediation experience will be better, just as I am certain that I will have more of them.
Mariya Uzunova is a Dispute Resolution Associate at Marriott Harrison LLP in London. Mariya has experience of both High Court and County Court litigation and has advised and represented clients at all stages of the litigation process, including in mediation.
Jim Lussier practices civil litigation, business law, intellectual property law and arbitration with Mateer Harbert in Orlando FL.