January 2021
By: Mark Greenberg 

Two months ago, my colleague, Maxwell Christianson, wrote an article titled, “Zoom – The Worst Thing to Happen to Mediation.”  I respectfully disagree.

Our legal system accepts change slowly, and often begrudgingly. Video conferencing technology is a perfect example. Pre-COVID-19, I cannot think of any court that routinely allowed video conference attendance, other than criminal first appearances. Few, if any, Florida courtrooms even had the capacity for it.  COVID-19 changed all of that. Our court system adapted to COVID-19 by allowing video conference hearings, usually via the Zoom platform. Now both Judges and Attorneys are big fans of Zoom hearings, to the point that few expect courts to revert to only in-person hearings after the pandemic.  Attorneys have learned to conduct depositions remotely and mediations have occurred with the parties not “physically” present, some even thousands of miles apart. Our firm tracks our settlement rate and it is virtually identical (within 3 percentage points) between live and video mediations. Every mediator I have spoken to confirms the same; that Zoom is just as effective as live, in‑person mediations if cameras are on.  Only when people are calling in, effectively transforming video mediations into telephone mediations, do settlement rates

There are some differences with video mediations, however.  Zoom allows the parties to remain at home or their office, and in a more comfortable environment.  This lets them focus on the case, but as Max points out, does not require them to “invest” in coming to the live mediation.  Of course, with children at home for school and daycare limited, those with children find Zoom far more compatible to attending, rather than trying to arrange for safe child care in order to attend mediation. People are also far more comfortable at home than sitting inside a conference room  with masks on for hours at a time.   Max posits that in‑person mediations encourage the parties to stay longer, but I have found the opposite.  It is far easier to pause a Zoom mediation for 30 minutes in order for a parent to pick up a child, than to have them drive an hour from live mediation to do so and then expect them to return. Further, no out of town parties have to catch a flight, placing a hard stop on mediation.

Otherwise, the same factors influence mediation whether by Zoom or live.  Is there a trial date soon forcing a hard decision?  Have the parties spent enough money that they are tired of attorney’s fees and wish to settle?  Are the parties willing to compromise to move forward in their personal and/or business relationship?  Would the parties prefer a certain result or an uncertain verdict? Have the attorneys adequately prepared their clients for mediation, including what are the realistic case outcomes should they not settle?  None of these factors change when the parties are meeting by video conference as opposed to live.  Indeed, sometimes having parties who do not get along physically separated can lead to a better mediation, not worse.  Simply put, Zoom has allowed mediations to occur at different times, in different locations, and without the parties spending additional funds simply to attend.

With large corporations, video facilitates the actual decision maker participating in mediation, instead of a local representative who is less informed on the file. This is particularly true with surplus lines insurance companies who underwrite large risks nationwide.  With video mediation, the mediator can speak directly with the actual decision maker, read their facial expressions and body language, answer their questions, develop rapport, and often facilitate a quicker and easier resolution of the case. In contrast, with live mediations attended by a local adjuster, the real decision maker enters the picture when the mediator leaves the room and the attorney picks up the telephone to call home office.

Are there times in‑person mediation is better?  Of course. You cannot give a hug,  apology, shake hands, break bread, or share tears over video.  In cases where that will be of substantial assistance, in‑person mediation will be superior.  If there is a concern that one or more parties is unlikely to be paying attention to the mediation (despite being on video), then in‑person would be a much better choice. In the majority of cases, however, Zoom mediations have resulted in lower costs, less travel for everyone, and have the same settlement rates as live mediations. It is the best thing to happen to mediation.

Mark Greenberg is the founder of Breakthrough Mediation and Arbitration. He is a successful trial attorney with over 100 verdicts, while representing both Plaintiffs and Defendants. He has a rare combination of First-Party Insurance Coverage and Third-Party Liability experience, along with business disputes, construction defects, community association, and family law matters. Mark has successfully mediated numerous disputes saving parties over $20 million dollars in legal fees.

December 2020
Author: Kenneth D. Stern

Most Mediators and litigators prefer to mediate in person, rather than by ZOOM.   However, I have mediated a number of cases virtually, because one party or attorney is concerned about the risks inherent in an in-person mediation, and you can rest assured that a ZOOM mediation can be just as effective in settling a case.  Most experienced Mediators are quite capable of conducting an effective virtual mediation.

With everyone on-screen, you can see the facial expressions, tone of voice, and much of the body language of everyone, and little is lost by mediating virtually.

Even if your client is not present with you in your office, a virtual mediation conference will enable you and your client to have confidential discussions, whereby you and your client can converse without the other side or even the Mediator hearing you.

A virtual mediation conference provides separate breakout rooms, permitting both or all attorney-client pairings to converse in total confidence and to caucus with the Mediator without the other side hearing or seeing you.  And of course, joint sessions can be had, with everyone present.  In addition, a virtual mediation can greatly reduce the costs of attending an in-person mediation.  It eliminates the expense of having clients, insurance adjusters, corporate counsel, and other corporate representatives fly in and generate the costs of airplane fare, hotel lodging, and meals attendant on many in-person mediations.

What are the technical requirements to participate

in a virtual mediation conference?

Don’t worry, the Mediator will do all the work to set up your virtual mediation.  In advance of the mediation date, the Mediator will advise you of which breakout room has been assigned to you and your client.  (I typically put the Plaintiff and his/her counsel in Breakout Room No.1,  the main Defendant and counsel in Breakout Room no. 2, and so on, if there are other parties.)   Your Mediator will send you an email containing: (a)  a link for you (and your client and any other representatives of your party, to use if they will not be present in your office) to click, to “check in” with ZOOM to join the session;  (b)  the Meeting ID and the PassCode which you and your client will need to enter to join the session, and (c) an “Activation Code” which you and your client will use to enter the Breakout room assigned to you both.

What if you can’t get sufficient hearing time to resolve objections

so that you can complete discovery before mediation?

Now that our Circuit Judges are resuming non-jury trials,  the number of time slots available for hearings on motions will diminish, perhaps almost to the point of evaporating, as our Judges try to reduce the backlog of cases that did not settle at mediation.  You have options here, and you may want to use a combination of them.  Be creative: try to get agreement on pending motions or on issues therein;  try to reduce a long motion so that it can be dealt with at a UMC;  and stipulate to matters that are not in serious dispute.

If you have a slew of motions raising objections or discovery issues that have to be ruled upon before you can depose witnesses or the opposing parties, try to get your opposing counsel to agree to using a Special Master;  that way, you can arrange to have all discovery issues heard and tentatively ruled upon.   The Special Master will send a Report and Recommendations to the Judge, and both parties will have the opportunity to file Exceptions.  Usually, these are few, and the Judge can then enter rulings on every discovery issue which was not excepted to;  this can save many months of frustration.

In one case in which I served as a Special Master, the Judge had advised the attorneys that it would take 12-14 months to have all the preliminary discovery issues heard and resolved.  After receiving and reviewing all the pending motions to compel, objections, assertions of privilege, etc., I then conducted two days of back-to-back hearings, some evidentiary with testimony, and filed a 51-page Report and Recommendations.  Only one counsel filed Exceptions, and these were few. The Judge entered her rulings, adopting all of the recommendations that were not objected to, and considering the few others in light of the Exceptions filed.  More than a year was saved in resolving all these motions and the issues raised;  the expense of holding all hearings before a Special Master, while not small, was far less expensive than 14 months’ worth of hearings would have cost.  And the parties could now proceed to take all the depositions which had to await the resolution of these issues.

Corona Virus be Damned:  Full speed ahead!

Virtual mediations, like virtual hearings and even virtual nonjury trials, are now a part of the fabric of legal practice.  And even if there are no concerns about the virus, virtual mediations are increasingly being used to save the expenses of everyone flying in to attend in person.  Don’t hesitate to avail yourself of this worthwhile alternative to in-person mediations.

Kenneth D. Stern is a retired Circuit Judge who served here in the Fifteenth Circuit.

Prior to becoming a Judge, he was a Trial Attorney with the U.S. Department of Justice, and an Assistant U.S. Attorney here in the Southern District of Florida.  He then moved to Palm Beach County and practiced both federal and state litigation, before being appointed to the Bench by Governor Jeb Bush.  Since his retirement from the Bench, Judge Stern has been serving as a Florida Supreme Court Certified Circuit Mediator, AAA-approved Arbitrator, and Special Master.  He can be reached at [email protected] or (561) 901-4968.

November 2020
Author: Maxwell M. Christiansen

COVID-19 has obviously changed the way people handle business. These days, we stay away from each other if we can. Why? Because it has been recommended by the CDC and virtually all our elected officials. Society expects distance. If we don’t absolutely need to have that meeting in person, it’s going to be over Zoom or some other video conferencing service. Some businesses have been meeting this way for a while, but for most this is the new normal, and we don’t really have a choice. So it begs the question: do we accomplish as much over Zoom?

For mediations, I believe the answer to that question is sadly, “no.” Zoom mediations do not work as well as mediations in person. Zoom is great for certain meetings where the convenience of meeting from anywhere in the world outweighs the interpersonal benefits of meeting in person. Depending on the goal of the meeting, it may not be as important to physically be together in the meeting. That is not the case for mediations. Last year, if I asked a colleague how his mediation went, there was over a 50/50 chance that he would say, “it settled!” The most common answer I get these days is, “Impasse.” As a litigator during the pandemic, I have not yet personally witnessed or even heard of a successful Zoom mediation, and the reason is obvious: the parties are not physically coming to the table.

There are two major reasons why being actually present at the negotiation table facilitates a mediation, 1) the parties are physically confined in one location with each other, and 2) they invest a significant amount of energy to attend mediation.

Confining the parties in one location for mediation has been shown to be a major factor in reaching settlement. Most mediators will recommend the parties not leave the mediation if a resolution appears possible. If the mediation runs long, the mediator may even suggest everyone eat dinner at the mediation. Mediators know the parties’ willingness to settle deteriorates when they pause the negotiation, even for half an hour.

The change of setting is also important. Even if the parties choose not to meet in the same room, but instead in neighboring rooms (against the mediator’s advice), both parties still physically come to the negotiating table. Typically, the parties arrive at a neutral location. In doing so, they exit their element and enter the mediation. The setting of an in-person mediation reminds the parties that the other is there too, nowhere else, and for the same reason – to leave the dispute in the past. They understand that they are together for a brief moment, and that is their chance to try to smooth things over, ask for what they want, make concessions in return, and explain their reasoning. Open, honest, and effective communication is very important to a successful mediation. Lay everything out on the table, listen to the other side, ask for what you need to reach an agreement, and see if you can get there with compromise.

Such communication may be harder to achieve over Zoom because the interpersonal atmosphere is reduced to staring at a computer screen. With Zoom, the parties simply open their laptops from home or the same office from which they have been managing their lawsuit, and their mind may still be in “litigation mode.” It feels like just another conference call about the case. The opposing party is just another box on their screen that they can turn off if they want. Some thoughts may arise: “Who else is in the room on the other side? What do they have on their desk that we don’t have here?” The parties’ temporary trust for each other can become strained, and in the end, the symbolic handshake is not possible.

Mediations in person also require the parties to make a substantial effort to actually meet. By showing up, they level with each other before mediation even starts. If the mediation is voluntary, the parties mutually decide to invest their time to travel to the mediation to consider the other party’s perspective on the case, usually with the understanding that mediation could last a while. The parties both cancel most of their other activities that day, and the process itself is a major investment of energy. That investment has a particular psychological effect on the parties that can cause them to shift away from dispute and towards resolution. They made the effort and they want it to pay off.

In contrast, parties to a Zoom mediation do not invest enough energy to trigger that binding psychological effect. It is far easier to end the mediation over Zoom. The parties do not need to get up and leave the building, they simply need to click “Leave Meeting,” and the mediation impasses.

It is therefore my opinion that mediation is not as effective over a Zoom call. Moving forward, I urge my colleagues to confirm whether their clients want to mediate over Zoom, or whether wearing the mask and keeping a six foot distance in a room is satisfactory.

Attorney Maxwell M. Christiansen was born and raised in the Palm Beaches. He graduated from Emory University, where he earned a Bachelor of Science in 2012, majoring in Neuroscience & Behavioral Biology and minoring in Mathematics. Max graduated from the University of Florida Levin College of Law in 2016 with a Juris Doctor and Certificate in Intellectual Property. Max is an associate business attorney at The Law Offices of Paul J. Burkhart and litigates various business disputes on behalf of corporate clients, including breach of contract, fraud, construction, and Internet defamation claims. Notably, Max has successfully removed from various websites, such as Google, damaging and untrue reviews posted anonymously on the Internet.