Top Ten Zoom Mediation Traps And How to Avoid Them

Zoom Mediation Traps Oehler Mediation Legal Blog

Zoom mediations have exploded in popularity due to social distancing and delayed trial dockets. Not only is Zoom easy to use, it is also a very convenient and inexpensive way to mediate with parties from remote locations. While the vast majority of Zoom mediations go off without a hitch, our early experiences have taught us many lessons about what not to do during a Zoom mediation.  Here are the 10 most significant Zoom mediation traps and how to avoid them.   

1. Inadvertent Disclosures

You and your client log into a mediation from different locations.  The mediator has not yet joined.  Your client mentions confidential information not realizing the other side’s counsel is listening but hasn’t activated his camera.  Inadvertent disclosures prior to the mediation may be prevented by confirming that the mediator will enable Zoom’s “Waiting Room” feature and disable the “Join Before Host” setting.  This will prevent participants from joining the mediation until they are allowed entry by the mediator.  Clients should be advised before the mediation not to discuss the case on Zoom until counsel and client are assigned to a caucus room and the mediator confirms the rooms have been correctly assigned. If the client would like to discuss anything, this should be done via cell phone or text with Zoom audio and video muted.

2. Unauthorized Recording

Participants may attempt to record a portion of the mediation on the Zoom platform, which has a recording function, or using another device.  To avoid this potential problem, the mediator should disable the recording function and obtain the commitment of the participants not to record any portion of the mediation on other devices to preserve confidentiality.   

3. Surprise Guests

While the parties and counsel may have agreed to confidentiality, it is impossible to detect if a non-party is listening to the mediation off camera.  To help prevent this, the mediator should explain confidentiality at the start of the mediation and have each party confirm that no one will be observing the mediation off camera. The mediator should remind the parties that courts issue significant sanctions for violating the confidentiality of a mediation.  The mediator should also ask the parties to secure their location to avoid interruption by children, employees or pets.

A “Zoom Bomber” refers to someone who invades a Zoom conference without authorization.  There have been reports of a password generation program called “zWarDial” being used to guess Zoom meeting identification numbers.  A mediator proficient in Zoom technology will utilize meeting passwords and the Waiting Room feature to prevent unauthorized access to the mediation.

4. Lost Connection

It is not uncommon to lose a participant during a Zoom mediation.  The interruption may be short lived or persistent due to loss of Wi-Fi or other equipment issues.  For instance, a participant’s Wi-Fi signal may be interrupted by a storm or other members of a household using Wi-Fi bandwidth for other purposes. To prevent this, rely on a hardwired Ethernet cable connection to a computer, rather than Wi-Fi, if possible.  If Wi-Fi is utilized, limit other Wi-Fi use on the same network to avoid compromising bandwidth. Since no connection is totally reliable, phone numbers should be exchanged with the mediator so that the mediation may continue if a connection is lost.   

5. Dress for Success

Part of the magic of mediation is the cathartic effect that occurs when a party has the opportunity to vent his frustration to someone in authority on the opposing side who respectfully listens to his or her story. This can often satisfy a party’s need to have their “day in court.” This cathartic effect is severely undermined if the attorney or client representative on the other side dresses in a manner which is perceived as disrespectful. It’s important that counsel prepare the client to dress for the Zoom mediation as the client would in court.  Judges have reprimanded lawyers for not dressing respectfully during virtual court proceedings and the same level of decorum required in court should be observed during Zoom mediations.

6. Unflattering Camera Angles and Other Distractions

Today’s trial lawyer must feel that it is no longer enough to be Clarence Darrow, he or she must also be Steven Spielberg.  It is challenging to establish rapport during a Zoom mediation, but it is even more difficult if counsel or client present themselves in a distracting manner.  The most common traps that impede your visual presentation on Zoom are poor lighting and an unflattering camera angle.  Both are easily remedied. Position yourself and your client so that your light source is projected onto your face.  Strong light coming from behind you will produce a silhouetted appearance reminiscent of Deep Throat. Light from a window or an inexpensive “ring light” facing you will provide much better lighting than an overhead light but position the ring light to minimize light reflecting off of your glasses.    

The camera should be positioned at eye level.  Look at the camera and not the images on the screen. This may take some practice. The camera should be placed close enough to your face so that your head fills the screen with just a little head room like a television anchor person. If an external camera is used, avoid the common traps of placing the camera below your face, which makes you appear to be peering into a well, or placing the camera high above your head which creates the look and feel of a surveillance camera.  Finally, make sure that you or your client are not seated in front of a messy, cluttered or otherwise distracting background.  A plain or tastefully decorated wall is preferable to a Zoom background which can make your features occasionally disappear.   

7. Audio Issues

Carefully choose a quiet location free of interruptions and background noise for your Zoom call.  If an external microphone is used, opt for a desk top microphone or lavalier mike over a headset which can be distracting.  Ensure that there will be no background noise during the mediation.

8. Lack of Familiarity with Zoom Technology

Most clients, and many attorneys, are not familiar with Zoom technology.  Attorneys should confirm that clients, adjusters and other attendees are equipped with the equipment to effectively participate.  Depending on the experience level of the client, this may include holding a brief, dry run if the client will appear from a separate location.  A mediator comfortable with Zoom will be happy to have a pre-mediation call with you and your client, on Zoom, to discuss the issues and ensure that you and your client are comfortable with the technology and know exactly what to expect.

9. Document Sharing

If you intend to share documents, confirm with the mediator that the “Screen Share” feature will be enabled. Assemble your documents in advance and save them in PDF format in a separate folder for the mediation.  Practice displaying your documents via “Screen Share” in advance.  Finally, turn off all notifications on your computer so privileged information does not pop up during your presentation.    

10. Execution of the Settlement Agreement

Once an agreement in principle is reached, Zoom mediations present additional challenges for drafting and signing the settlement agreements. To expedite preparation of the final settlement agreement, counsel should prepare a draft settlement agreement prior to the mediation which identifies the anticipated material terms.  This draft agreement can be filled in and emailed to the parties once a verbal agreement is reached.  The settlement documents may be executed without charge on Docusign’s platform at https://www.docusign.com/esignature/sign-documents-free/

Taking these steps will result in a more secure and effective Zoom mediation that will maximize your chances for success.

Harold Oehler

harold@oehlermediation.com

Harold Oehler is a full-time, Federal and Florida Supreme Court certified circuit civil mediator with over 30 years of experience representing clients in employment, personal injury, product liability, insurance and commercial litigation claims.    He is the Chair of the Mediation and Arbitration Section of the Hillsborough County Bar Association. He serves on the Executive Council of the Florida Bar's Alternative Dispute Resolution Section.   Harold is a former trial lawyer and general counsel of a national public company where he oversaw all litigation, attended all mediations and negotiated the company’s agreements, nation-wide. For more information, visit www.oehlermediation.com

1 Comment

Leave a Comment