Guidelines and Protocols for mediations conducted by video conferencing

© Lou Chang ALC. 2020

Notice of Offer of Videoconference to the Parties:

Lou Chang Mediation and Arbitration offers the option of having mediations conducted by videoconference. Mediations conducted utilizing videoconference technologies may be a necessary or desirable alternative when there are health and safety considerations or when early or immediate mediations are needed or there is an interest in minimizing travel expenditures.

The videoconference is conducted via a web-based software that comes at no cost to the parties. The parties simply need to have a desktop or laptop computer with a webcam. All parties and witnesses can be in the same location, just as if the arbitrator were there in person or each party can be in its own location. The videoconferencing technology allows all participants in the mediation to be seen and heard and it also allows parties and their representatives or counsels to meet and work in separate caucus or breakout rooms.

Overall Goal:
When parties are willing to mediate in a good faith attempt to search for resolutions to mutual problems, they nearly always succeed. Through mediation, parties maintain greater control over the outcome and resolution of their conflict and usually with substantial savings of cost, time, opportunity costs and aggravation. In mediation, parties are encouraged to exchange important information so that all parties can fully and adequately assess the situation in order that productive, practical and sensible business decisions can be made. If this can be achieved before avoidable and unnecessary litigation expenses are expended, parties are better able to use their resources more productively and to reach reasonable and realistic agreements.

Characteristics of Mediation.
When parties make the commitment to participate in good faith in a mediation process they find that mediation is:
1. Effective. Across the country, mediation programs commonly report that 70% to 80% of business, civil and commercial cases that go to mediation are resolved through mediation.
2. Quick. Mediations usually can be arranged in days or weeks.
3. Inexpensive especially when compared to cost of litigation or arbitration.
4. Flexible and allows for creative “win-win” solutions.
5. Private, confidential and can help protect relationships from damage caused by an adversarial litigation process.
6. Safe. Parties have complete decision making control. No one can compel you to agree to any agreement unless you find the agreement acceptable.
7. Positive. Mediation focuses on the future, improves communication and seeks solutions in a collaborative spirit.
8. Durable. Solutions reached by mutual agreement tend to be more durable and lasting than decisions imposed by a court or arbitrator.
9. Accessible. Available quickly, without the formality, procedure and rules of the judicial system.

Flexibility of Process.
Parties and the Mediator should confer and determine how best to conduct a safe, confidential, productive and fair process. The mediation
process is completely flexible. Customarily, parties will have some pre-mediation discussions and exchanges of information in preparation for a meeting of the principals, representatives and their advocates to meet in person to discuss their respective views, positions and concerns with the hope and objective to achieve a mutually agreeable resolution to existing claims and issues. During one or more mediation sessions, parties can meet jointly with the mediator. More frequently, parties separate into private rooms for confidential discussions and the mediator shuttles between the different rooms. Parties are free to customize and adapt the process to fit their preferences, needs and the specific circumstances of each case.

The Mediation Process.
The greatest advantage of mediation is the flexibility of the process to adapt to the special facts and needs of the parties. Parties resolve their disputes in a private, confidential and informal manner with direct involvement of the disputing parties.

In preparation, parties should:
o Discuss with the mediator whether all potential and necessary parties have been identified and are participating. Assess whether the mediator can assist in accelerating discovery and exchange of critical and pertinent information. Discuss any special concerns, needs and sensitivities that may exist in the case.
o Be creative and open to possibilities. Mediation allows for “win-win” resolutions. Parties should be prepared to listen and look for all possible options and packages of possible solutions. Understanding the stated and unstated needs, hopes and dreams of the parties involved can help to fashion resolutions tailored to meet their special needs and interests. Many times, solutions are not the ones thought of prior to mediation. Many things are possible in mediation that may not be available in litigation or arbitration.
o Understand that there are applicable rules of evidence, statutes and possible contractual provisions affecting confidentiality and
privileges. In addition to rules of evidence that protect statements and actions made or taken during the course of a mediation or settlement discussion, Hawaii has adopted the Uniform Mediation Act (UMA) which provides a broad mediation privilege.
o Come to the mediation with a mindset you are there to get the dispute settled and you will do everything within reason to build a solution on which all can agree.
o Commit the time, energy and attention to participate meaningfully in the mediation. The active participation of all necessary decision makers is critical for a productive and successful mediation. Decision-makers should have full authority and flexibility to agree to solutions and packages proposed. When organizations and institutions are involved and parties and their representatives in mediation do not have the full and flexible authority to agree to a resolution, arrangements should be made and confirmed for immediate access to such person(s) with ultimate decision-making authority.

Recommended and Requested Ground Rules.
The Mediator suggests and requests that the all parties involved in the mediation process agree to the following protocols and ground rules:
o All participants will treat others with civility and business courtesy. It is not a requirement that participants agree on every matter. Given the goal to reach a mutual agreement, it is necessary that parties agree to listen to understand the views and concerns of others. If a party disagrees, the party will do so with civility.
o All ideas and options for resolution are to be encouraged. Parties will help to think of and be open to creative ideas and options for resolution.
o When additional facts and information come to light during the mediation, parties commit to be open to reassessing their views in light of new facts and information.
o Mediation commonly involves negotiations concerning multiple issues. As agreements are reached on individual issues, parties should understand that such agreements are contingent upon reaching agreement on all issues needed for a complete mutual agreement. The parties recognize and acknowledge the right of all parties to consult their advisors and Counsels before entering a binding agreement.
o Mediation is a voluntary and consensual process. Parties agree that for the time, effort and energy committed by the participants to the mediation effort, no party will terminate or walk out of a mediation without first giving the Mediator an opportunity to discuss the matter with all parties. No party shall declare an impasse until the Mediator determines that an impasse truly exists.

Parties are free to suggest revisions to these requested and suggested ground rules and to propose any additional ground rules that they feel might be appropriate.

Mediation Utilizing Videoconferencing Technologies.
Mediations conducted in person and in real time are dynamic and effective. There are, however, times and situations where in person meetings are difficult to arrange and coordinate. Distance, busy schedules, cost and health and safety considerations may require consideration of conducting mediations through the use of telephone and videoconferencing technologies. The use of video and telephone technologies for “online mediations” has been done effectively for many years in many sectors and arenas. Improvement and advances in telephone and videoconferencing tools have helped to make meetings, collaborations, hearings and group activities easier and effective. Given recent concerns, the conduct of mediations through the use of video and telephone technologies will likely become even more mainstream.
There are several ways to participate in a videoconference: by desktop computer, laptop, tablet, smart phone, or by regular landline phone. Those who have computers, tablets, or smart phones, can participate fully. Those who don’t have video capability can participate like a regular telephone conference call. Persons participating by desktop computer, laptop, tablet, smart phone can participate at no cost. Persons participating by telephone may, if they are calling long distance, incur telephone long distance charges.

Videoconferencing Features.
There are many publicly and readily available videoconferencing technologies. They include Zoom, Microsoft Team and Go To Meeting, among others. The one that appears to be most popular is Zoom. Zoom is the videoconferencing technology primarily used by Lou Chang Mediation & Arbitration. Zoom offers many features which can be adapted and tailored to accommodate a multiplicity of needs and situations. Some of its primary features that are suitable for the conduct of mediation meetings and conferences include the following:
1. Meeting Room. A general meeting space where all participants can see and hear each other;
2. Breakout Rooms. Private meeting spaces for private and confidential discussions with only the parties in the breakout room able to communicate with each other. For example, breakout rooms can be set up for each party, allowing Counsel and client to have confidential discussions. Participants in a Breakout Room can speak freely with each other and use the Chat feature. These messages and communications cannot be seen or heard outside of their Breakout Room. Additional breakout rooms can be utilized for the mediator, parties and counsels to have a private and confidential discussions;
3. Waiting Room. A meeting space where persons can be placed until it is appropriate for that person to enter the general meeting room.
4. Screen Share. Allows participants to share a document, video, photo or website that is on their computer for all parties to see;
5. Chat. A messaging utility that allows participants to share a comment with all participants or with only a designated participant;
6. Raised Hand. An indicator that a participant wishes to make a comment or ask a question; and
7. Announcements. The host of the videoconference, generally the mediator, has the ability to communicate a general announcement to all participants or to request an opportunity to enter a breakout room (like a knock on the door) where participants may be having a private discussion.

Privacy and Security.
With the expanding usage of videoconferencing technologies, data sharing, internet hacking and “Zoombombing” incidents have occurred. Zoom has adopted and implemented changes to provide for increased data security. Zoom videoconferencing can accommodate group meetings of hundreds and thousands of participants. Initially, Zoom utilized a 10 digit numerical code which participants could use to access a Zoom meeting. Users sometimes widely publicized their public meetings and published the meeting access code. Anyone with access to the 10 digit numerical code could access the public meeting and could disrupt the meeting if they chose. To address this problem, Zoom recently implemented multiple security features for its video conferencing platform. The attendance and participation of persons can be controlled. Participants are provided with a unique meeting conference number plus an additional private access password as an additional layer of security. Participants can also be required to enter into a Waiting Room until the meeting host is able to greet the participant and affirmatively allow the participant to join the meeting or assign the participant to a designated Breakout Room. These multiple security features should adequately protect the privacy and confidentiality of a mediation process.

Advance Preparations.
Before any scheduled videoconference proceeding, all participants should conduct an equipment check and pretest to confirm the suitability and appropriate operation of the computers, cameras, microphones and internet connections to be used. Practice session or sessions with advocates and the parties should be considered. This permits the key individuals to experience how the videoconferencing works. The practice sessions are an excellent opportunity to try out the different features – e.g., Breakout Rooms, excluding a witness, communicating during a breakout session, privacy issues, recording, exchange of documents, the Chat feature, etc. It is good practice to have backup and contingency plans to accommodate any technological glitches or other problems that may occur during the course of the proceeding. Parties should have the direct email, text and contact numbers of the person(s) to contact in the event of a problem.

With practice and good preparation, having a productive and successful mediation will be enhanced.