Mediation is a process that allows parties to settle disputes outside of the traditional litigation setting. It is advantageous because disputes can be settled using creative solutions to achieve the best outcomes. It is a confidential, informal and cost-effective process for problem solving. In traditional litigation, generally, there is only one successful party which can be avoided through the mediation process. Mediation also offers opportunities for the parties to control their own process but does require preparation.
As mediator, my role is to help parties understand each other’s positions and wherever possible, assist them to reach favourable negotiated outcomes or assess the future risks, if settlement does not occur. I describe below how virtual mediations can be undertaken.
Arbitration is a formal trial-like process for privately resolving disputes. It can be based on a contractual relationship between the parties and may even be contemplated before a dispute arises. Most often, the process is binding unless the parties agree otherwise. The arbitration is conducted according to the process they agree upon. Generally, the arbitrator will be assisted by documentary evidence, oral evidence of witnesses and submissions from counsel. The virtual arbitration process is readily available through the same technology employed for online mediations.
Mediation / Arbitration (Med / Arb)
Med / Arb is a process that ensures the conclusive resolution of disputes. Parties first engage in mediation in an attempt to find a negotiated solution with the assistance of the mediator. In the event that the parties are unable to find a resolution through the mediation, the process shifts to arbitration. In that case, with prior agreement, the mediator becomes the arbitrator of the dispute. With the assistance of available evidence and submissions from counsel, the arbitrator, unless the parties have agreed otherwise, will make a legally binding decision to resolve the dispute. Conducting a Med/Arb requires experience and familiarity with the issues and the process. It can be undertaken in person or through an online platform.
The role of settlement counsel is unique in the litigation process. The goal of settlement counsel is to assist one particular party to develop a settlement strategy for a dispute. Settlement counsel is not a neutral party but is retained as part of a broader litigation team. The role of settlement counsel is to review the contentious issues and employ creative strategies for reaching principled resolutions that may elude the lead lawyer engaged in the traditional litigation process. By retaining settlement counsel, the rest of the litigation team is free to focus on the adversarial process while settlement counsel can explore other avenues for reaching a negotiated resolution. Depending on the nature of the dispute, settlement counsel may or may not share the settlement discussions with the rest of the litigation team.
I am available to assist people facing challenging issues or potential disputes as an objective third party in order to provide a new perspective on possible resolutions. Both lawyers and individual clients seek this assistance. The very private process can help individuals achieve “win / win” solutions in a carefully scripted manner. Often the opposite party never even knows of my engagement.
ONLINE VIRTUAL MEDIATIONS AND ARBITRATIONS
I have now successfully conducted both mediations and arbitrations online involving many parties and Counsel in different locations and time zones. The ZOOM technology provides the opportunity to share documents, have confidential solicitor-client conversations, conduct cross-examinations and have private meetings among any range of the participants. Below is a description of the technology employed for mediations that is readily adaptable to arbitrations.
To better understand the guidelines and groundrules used for the virtual process please click here
- Online Platform: Zoom.
- We will use the online secure platform provided by Zoom to conduct your online mediation session.
- In advance of your scheduled mediation you will be provided with a Zoom test meeting opportunity to understand the private caucus process that will used by Counsel/client representatives during the mediation without my presence. Please share the provided link with your colleagues/clients participating.
- To activate, all you need to do is “click” the link and “open zoom”. Then activate “Join with Video” and “Join with Computer Audio”. Please familiarize yourself with the operation of the platform so that you are able to operate the system and participate in your mediation session. Some Apple products may require you to download the free Zoom App in advance of the session. Zoom has tutorials available at https://support.zoom.us.
- On the day of the mediation you will be provided with a different Zoom link to join the mediation plenary room by following the same “click” instructions as your test meeting.
- Early Log On. Please log on to the scheduled mediation session 15 minutes in advance of the scheduled start time so that any technology issues can be resolved and your mediation session can start on time.
- Secure WiFi or Ethernet Connection. You will need a secure WiFi or Ethernet (hard-wired) connection for your computer. Test the speed and dependability of your connection BEFORE the mediation. DO NOT use a public access WiFi connection, such as those available in coffee shops and businesses as they are not secure and your information may be at risk in that situation. Please ensure your devices are all fully charged and you have power cords available.
- Technology Failure Protocol. Despite our best efforts, technology may fail to operate properly and a mediation session may not start on time or may be interrupted. If that happens, please take the following steps:
- Log out of Zoom and “click” back in. This often re-establishes the connection.
- Call the number I provide immediately to let me know you are having trouble.
- Conference call:
- In the event that we cannot convene or continue the mediation via Zoom participants may continue with a Bell Conference call by dialing a number I will provide to you.
- Conference call:
- In the event of any problem please email me at address I will provide to you.
- If a conference call is not feasible, the mediation will be canceled and rescheduled as soon as possible.
- Process. Lawyers must still deliver mediation briefs a week before the mediation so that I can complete my preparation. I convene a plenary session with all lawyers and clients in the same “room”. I do my traditional opening to review the factual chronology and issues identified by Counsel through my “flip chart notes” displayed on the screen for everyone to follow me. There will be the opportunity for lawyers/clients to raise any questions or point out matters I may have gotten wrong or overlooked.
- Caucus Protocol. At times it will be necessary to caucus with each party separately. The Zoom online platform allows me to “mute” one group while continuing to communicate with the other participants for a caucus. I will alternate between rooms as necessary. As well, I am able to “meet” separately with Counsel in another “room” away from the clients. It is necessary that you agree that in the event that you are the muted party during my caucus with the other party and you are able for any reason to hear the communication intended to be private, you agree to IMMEDIATELY terminate your Zoom online mediation session and will call and email as above.
Confidentiality and Privacy
- Privacy and Confidentiality. Only the people who have executed and returned to me both the Online Mediation Guidelines and Ground Rules and the Agreement to Mediate may participate in the mediation. You must confirm that you are alone in the room and that you cannot be overheard by anyone else around you. Please provide a list of attendees in advance. At the commencement of the Mediation a roll call will be taken.
- Absolute Prohibition on Recording. No one may audio or video record any mediation session or portion thereof. In the event that you learn of an audio or video recording of any session, you shall take immediate measures to destroy the recording and will not disseminate the recording to third parties. You further agree that you will not transmit a live or deferred video or audio relay of the online mediation session to third parties.
Best Practices and Troubleshooting
- Interruption Free Zone. Please take all reasonable measures to ensure that you are in a quiet area and not interrupted during your online mediation session. This includes arranging for appropriate child care, notifying family and friends of your unavailability and making appropriate scheduling choices. Please ensure there are no background noises in your location as they are amplified during a Zoom connection and will cause unwanted distractions.
- Technology Hiatus. Except for the computer or mobile device upon which you are conducting your online mediation session, please turn off or put on silent any phones, tablets or computers and disable any alert announcements and/or texts for the duration of your online mediation session. Kindly refrain from the use of social media, email and/or internet search engines, other than as may be necessary to conduct the session.
- Waiting Room. In order to preserve the neutrality of the process, you may enter the meeting into a “virtual waiting room” each time you log on, until all parties have arrived. Once all parties are logged on and in the waiting room, you will be admitted into the meeting.
- Respectful Online Communication.
- Due to the nature of the online forum, it is especially important to allow each participant to finish their comments or statements before responding. The audio portion of the technology will only allow one person to talk at a time. In addition, the online format can amplify and exaggerate sound so maintaining a regular speaking voice is important. During my opening introduction the microphones of all participants will be muted to avoid background distractions.
- Please position the computer camera at your eye level. Finally, please remember that the camera does not transmit hand gestures or non-verbal cues, so it is important to verbalize all communication during an online mediation session.
- Document Execution.
- Draft Minutes of Settlement may be circulated among Counsel by email in word format. Once finalized, acceptance by clients will be evidenced by a confirming email of Counsel that the document has been signed, in counterparts and circulated thereafter by scanned document.
- If needed, we may use Docusign.com as a secure platform for the execution of documents required during the mediation process (more information can be found at www.docusign.com).
- In the event that original signatures are required or preferred, then copies for execution will be transmitted to you for printing and signing and you will be responsible for returning the executed copies to me via mail or overnight delivery service.
Preparing For The Mediation
In order to have a successful mediation, preparation is required by all involved.
I urge all parties to spend the time necessary before attending on the day of mediation, thinking about the range of desired outcome(s). You should thoroughly understand your own positions and also think about the dispute from the perspective of the other party.
In order for me to be prepared to assist parties, I need sufficient time to review materials prepared by counsel. Therefore, I ask counsel to respect the deadlines given for submission of mediation briefs. I expect counsel will have met with clients to fully canvass desired alternatives for all parties and the risks which will be faced if the matter does not settle.
What to Expect of a Mediation
No two disputes are exactly alike. The nature of mediation is dynamic and so it is difficult to predict how any scheduled session will unfold. However, there is a general practice that I follow. There is always room for flexibility in the process. If you believe there is a better way to achieve a resolution, I am willing to discuss these ideas with the parties involved.
If it is necessary, I am available for preliminary sessions with counsel to discuss any issues that need to be addressed before a scheduled mediation.
Generally, scheduled sessions begin at 10:00am. I will make a detailed presentation outlining the mediation process, and the key facts, issues and the litigation steps to be undertaken for a trial. This presentation ensures that everyone has all of the same, necessary information required for negotiations.
Depending on the nature of the dispute, it may be advantageous to discuss issues with the parties separately. I will facilitate these private discussions with parties in confidence.
I am dedicated to finding satisfactory outcomes for parties and will continue to work with you for as long as may be required during and even after the scheduled mediation. Please come with the flexibility to remain in attendance for as long as necessary. If required, please ensure you have telephone access, even after business hours, to any person you may want to speak with about the matter.
A mediation may end with the parties signing a settlement document. On other occasions, additional time may be needed to acquire or assess new information after the scheduled session. Additionally, issues may be narrowed, to permit counsel the opportunity to hold future settlement discussions.