Written by: Alfred A. LaSorte, Jr.
Published: May 2023

The pandemic is finally over (more or less) and law practice has moved to the “new normal,” where working from home is an option, but many lawyers have moved back to their firms’ offices. Where does Zoom mediation fit in this new normal?

We all got dragged into the Zoom age three years ago (some, kicking and screaming) as the pandemic wreaked its havoc.  But within the past year, with restrictions loosened, in-person mediations have made a comeback of sorts.  Today they constitute perhaps 20% of my mediations.

Initially, Zoom had a learning curve.  My first mediations on Zooms seemed less effective than those in-person.  Some people were frustrated by their inability to read opponents’ body language across a web cam and computer monitor.  From 2020 through 2022, all but a few of my mediations took place on Zoom, but not by choice.  We all just made do with Zoom, as in-person conferencing simply wasn’t an option.

Over time, people became more accustomed to doing business via teleconference, and Zoom mediations improved, at least in my anecdotal experience. I’d say that at this point, Zoom mediations are just about as  effective and successful as those held in-person.

We’re all familiar with Zoom’s drawbacks – the lack of true, face-to-face negotiation, distractions allowing participants from home to zone out and lose focus. (I’ve seen parties – and lawyers – called away from their webcams mid-mediation by everything from barking pets and crying babies to laundry chores.)

Zoom does have unquestionable benefits, though.  Its screen sharing feature makes doc presentations easy.  Scheduling is easier as well – that insurance adjuster in Nashville no longer needs travel arrangements for two days out of the office, just an internet connection and webcam. Participants appreciate being able to join in from their homes or offices, or those of their counsel. It can be much less expensive as well, without the need for any travel.  And counsel attending via their office computers, with easy access to their staffs, makes preparation and circulation of settlement docs convenient and quick.

So, which should you choose for your next mediation – in-person or Zoom?

In federal cases, Zoom is the court’s preferred method. The most recent version of Southern District of Florida Local Rule 16.2, “Court Annexed Mediation,” amended last October, provides that if the parties cannot agree on whether to conduct a mediation in-person or via video conference, it takes place via video conference. “Unless the Court orders otherwise, the parties shall decide whether their mediation conference will be conducted in person or by video-conference and, if the parties cannot agree, the mediation conference shall be held by video-conference.” S.D. of Fla. Local Rule 16.2(a)(2)

State court rules show an opposite preference, namely, that mediation take place in person unless the parties stipulate to (or the court orders) a video conference. See FRCP 1.700(a): “Absent direction in the order of referral, mediation or arbitration must be conducted in person, unless the parties stipulate or the court, on its own motion or on motion by a party, otherwise orders that the proceeding be conducted by communication technology or by a combination of communication technology and in-person participation.”

In most cases, I prefer Zoom.  I’m happy to handle in-person mediations when parties and counsel prefer. But I’m reluctant to give up Zoom’s many conveniences.  In nearly every mediation I find the parties sharing pleadings, case law and documentary evidence on screen. Many of my mediations involve real estate disputes.  In a boundary dispute, for example, there is no better aid to analyzing a case’s strengths and weaknesses than sharing online aerial photos, depicting the locations of hedges, fences, etc., over time.  Zoom’s share screen feature is perfect for this.

The same is no doubt true in contested liability auto accident cases, for example, where accident scene and vehicle damage photos can be assessed together on everyone’s screens.

On the other hand, with Zoom you do lose a bit of the “feel” for other participant’s body language and other subtle clues to what they’re thinking that only a face-to-face conversation provides.  In some cases, this could be the deciding factor as to whether to select Zoom for your mediation or not.  But, in my experience, what you gain with Zoom usually outweighs what you lose.

Now that in-person mediation is back on the table as an option, consider the benefits and disadvantages of both alternatives and pick whichever is the best fit for your clients’ and your cases’ needs. And then go settle your case!

After a long career at Shutts & Bowen LLP as a commercial litigator specializing in real estate and general business cases, Mr. LaSorte now acts exclusively as mediator (over 400 cases so far) and expert witness through his own firm, Alfred A. LaSorte, Jr., P.A. d/b/a LaSorte Mediation.  (www.LaSorteMediation.com).  Mr. LaSorte can be reached at (561) 286-7994 and [email protected].

For additional ADR tips and resources, go to https://www.palmbeachbar.org/alternative-dispute-resolution-committee.

Written by: Alex Romano
Published: April 2023

Dispute Resolution is a great career choice but transitioning to mediation isn’t as flawless as it seems.

At Matrix Mediation (“Matrix”), we have seen numerous attorneys attempt the transition to mediation without knowing what goes into making a successful practice. From believing common misnomers about the work effort required to failing to financially plan for the transition period, we dare to say we have encountered it all in our seventeen (17) years in operation when it comes to planning for life as a mediator. 

This article navigates through the process of successfully transitioning your practice from litigation to mediation and highlight some key considerations to keep in mind before taking the plunge. 

Evaluating your Finances Before the Transition

One of the most common misconceptions we hear is that the money comes quick as soon as you become a mediator. However, for many, that is not the case. Instead, we have experienced that it takes about one (1) to two (2) years for a mediator’s business to take off from occasional mediations to full time work regardless of their prominence as an experienced trial lawyer or judge.

As such, it is important to evaluate your finances and plan accordingly before transitioning to mediation. This includes (i) evaluating your savings, (ii) budgeting for necessary business expenses, (iii) taking into consideration the timing of when you leave your practice and (iv) considering future life events that might impact your financial plan.

Should I keep practicing and mediate?

We are often asked – can I keep litigating with a mediation practice? Legally and ethically, yes. However, it is important to keep in mind that keeping your practice will lead to a greater likelihood of conflicts of interest. Also, would you trust your secrets with a mediator you may have a case against next month? Here at Matrix we are frequently asked if mediators are still practicing.

Network, Network, Network

When you’re not fully booked you should be spending your time seeking mediation opportunities. This includes reaching out to old classmates and every person you have ever litigated with or against and asking for a chance to mediate their next case. We have time and time again seen that the mediators that take this advice see profound results in the quality and volume of their practices.

Does that mid-week happy hour or Saturday night legal event on your calendar bring you dread? Well, to build an established mediation practice it will now be your full-time job to meet as many people as you can and get your name out. If attending networking events isn’t your style, then consider getting involved with various bar organizations to help you network in a more organic setting.  

The Price is Right

You may an experienced trial attorney, but you’re a new mediator. Consider choosing a price point that encourages new clients to try you out, get a book of business, and then you can set your rate higher. Many new mediators often respond with “I have never looked at how much a mediator charged why should I start low?” To build your business, you have to get business, which starts with offering reasonable rates commensurate to your experience in the field. 

Calling Ahead & Following Up

Not everyone calls ahead, so it will set you apart from the pack.  It provides the attorney with the opportunity to tell the mediator things they might not want to put in writing, can offer valuable insight into the position of each party before mediation occurs and can establish your relationship with a client before the mediation even begins.

Follow-up on impassed cases. The mere fact that you called will keep that case in the forefront and help with an earlier resolution. Although your time is important, consider not charging for follow-up, which helps keep things more fluid. In our experience, if you give a few minutes away for free, it will pay dividends. 

Final Thoughts

Mediation is your new full-time career, not a retirement hobby; Results require effort, focus and perseverance. As clients expect more than they ever have before, it is more important than ever to put in the effort and concentration that clients not only deserve but expect.

Concerned about the competition in the field? Don’t be. Every day we get feedback from practitioners that their favorite mediator is booked, and they are looking for new blood. If you are willing to give your best effort you will find that dispute resolution is a rewarding and satisfying career.

Alex Romano is a Director at Matrix, a full-time mediator, and trainer at Matrix Training Institute. Prior to coming on as a mediator she did over 50 jury trials and has worked at Matrix for 17 years in various capacities. She has an extensive understanding about not only what it takes to be a successful mediator, but the nuts and bolts of how to run a successful mediation practice on a large scale.