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