Mediation in The New Normal: Virtual Zoom Mediations

As we live through unprecedented times, our lives – personal and business – are disrupted. Since we don’t know how long this pandemic, and the restrictions and disruptions that it has caused, will last, it is not possible to know what the landscape will be when it ends.

Today, most everything appears at a standstill. The courts in New York, where people go to resolve disputes, have been closed except to address a very limited array of essential matters; most commercial lawsuits in which some type of extraordinary emergency is not present, have been on hold. That means that the parties may have to wait to move forward on a resolution of their claims for some indeterminate period, even as the courts begin to conduct some proceedings on non-essential matters virtually, where possible. And for those who have a dispute with others, but have not yet commenced litigation, a resolution of the dispute in court may have to wait. One thing is certain: in almost all instances, disputes that existed prior to the shutdown may still exist when it is over.

May. There is an alternative.

We’ve often written about how mediation provides a faster, cheaper way to resolve a dispute; whether or not the matter has gone to court. We’ve also described how, with the development of “Presumptive ADR” in New York State, most parties to lawsuits will be required to go to mediation or some other form of alternative dispute resolution soon after a lawsuit is commenced. So, if mediation, whether by choice or mandated by a court, is a way to resolve a dispute, can disputes be resolved during this pandemic through mediation, so that people and businesses will have one less thing on their plates to address when they get back to work?

The answer is a resounding, “Yes.” And what a productive use of time that would be for many!

Mediators are able, ready and willing to conduct “virtual” mediations using Zoom and other online technology. Zoom video conferencing allows parties, attorneys and mediators to meet, much in the same way that they would in a “live,” in-person mediation — but from the safety of their own homes. The parties, or their attorneys, can meet online with the mediator prior to the mediation to address the same issues that they would address in an initial pre-mediation conference call. If discovery has not yet commenced, the parties can agree to exchange a limited number of key documents necessary to negotiate a settlement electronically (provided, of course, that the documents can be shared online); the attorneys can submit pre-mediation statements to the mediator by email if requested to do so; and the parties and their lawyers can appear with the mediator at the mediation through a Zoom video conference. Just as in a “live” mediation, all parties can appear together at one time, as in a joint session, and the mediator has the ability to create breakout rooms for each of the parties. That way the mediator can shuttle around from “room to room” to conduct private caucuses with each party.

Given the seismic disruption to our lives that this pandemic has caused, Zoom mediations provide an excellent opportunity to settle a dispute now, which would also have the virtue of limiting (or ending) the expenses and fees that parties will have to pay if a dispute goes on to, or proceeds in, litigation. Indeed, resolving disputes now and avoiding future costs could be one of the few positive accomplishments that one can achieve during this difficult time.

If you have any questions as to how a Virtual Zoom Mediation would be conducted or would like to learn more, please feel free to contact me.