I like acronyms. They helped me pass Geology in college because memorizing layers of rock formations didn’t come naturally. They also helped me pass the bar exam, because IRAC (issue, rule, application, conclusion) was a proven formula for tackling essays. So, HINT is my acronym for Zoom mediations, based on my experience as a mediator handling these during the past few months.
HUMANIZE. Zoom mediations are inherently “cold.” Typical mediations cause folks to gather in a conference room where initial, casual chit-chat is easy, is expected, and warms the room. This warmth cannot be discounted, as the process requires that the parties like and trust a total stranger: the mediator. So, if your client has been at home doing some cooking, or writing, or playing a musical instrument, or teaching their kids/grandchildren, let’s put that out front and center. It is not irrelevant to the process.
INDIVIDUALIZE. Zoom mediations feature an unnatural competition for talk-time. Some easily jump into a discussion; others, however, seem to be waiting their turn, or an invitation, which perhaps never comes. Often folks are non-participatory because they don’t want to compete for talk-time, not because they don’t have something to say. Make sure everyone gets a chance to talk. Mediators, however, know that some participants on the call remain quiet because their attorneys want it that way. Before talking directly to a non-attorney, I usually ask the attorneys if I can, and identify what I’d like to talk about. It is very hard to earn the trust of a person with whom you have not directly spoken.
NAVIGATE. Zoom mediations, a product of the pandemic, require a new mindset. Parties can now “walk out” with one computer click, and be immediately back home. The physical investment in the process is greatly reduced. Thus, an early showing of a real interest in resolution — by both sides — is exceptionally productive in this environment. So, too, is recognition that all parties may be hurting economically and looking for a solution to protracted, distracting, and risky litigation.
TRIANGULATE. Zoom mediations require the mediator to “enter” the room where the party and counsel are always present. Gone is the opportunity to casually encounter one of the lawyers in the hallway — perhaps after five hours of a mediation that seems to be going nowhere — and find out what is going on. These “inadvertent” meetings can be crucial in finding a path to resolution. Although a mediator can linger in the hallway hoping for this opportunity, he/she may be reluctant to suggest such a one-on-one telephone call, the functional equivalent in this current environment. An attorney, however, can easily facilitate this, when appropriate, as a communication tool that may help get things back on track.
Final thoughts: Mediation still works. Stay healthy and safe.