A Pandemic in Play: Love, Basketball and 10 Tips for Success in Virtual Mediation
It has now been five months since my world changed in the midst of this life-changing pandemic. On March 11, 2020, I got the call from my 84-year-old mother, who – in a most dreadful and devastated voice – shared with me important news:
She informed me that the NBA had canceled its season.
In recent years, my mother's dementia has worsened, but her love of professional basketball has increased ten-fold (she's a diehard Spurs fan). That first night, she called me three times with the obvious questions: What would she watch on TV? What would she do without basketball? Is this all really real?
While trying to alleviate her very real pain that evening, I glanced at my calendar and saw three mediations on my schedule in the coming weeks. If it wasn't safe for the NBA to meet in person, how could we? I wrestled with this, as have many others in the Texas injury benefit industry.
Fast-forward to months later, and we find the NBA back on the court, albeit in a bubble. We have also found that virtual mediations are, in fact, just the play we needed to keep the ball moving in the midst of this pandemic.
So, while navigating the world of virtual mediation is a new thing, take it from the pro I have now become: With a little training, you, too, can participate in virtual mediation like an All Star. Here are my top 10 tips for navigating virtual mediations. Here are my top 10 tips:
1. Preparation is more important than ever.
Mediation was never just about the actual event. It's a process, and regardless of the forum for the actual mediation, the process does not change. The majority of the work involved in settling a case is performed prior to the day of the mediation. And if the parties continue to put the effort in early, they will be well-positioned to resolve the conflict successfully (even virtually).
Just make sure to discuss beforehand the proper virtual mediation attire –team jerseys optional.
2. Warm up.
Whatever you do, take the time to warm up before the mediation begins. Commonly used platforms for videoconferencing include Zoom, GoToMeeting, Webex and Skype. Know which platform your mediator intends to use beforehand, and make sure you are familiar and comfortable with it. Test your equipment, confirm your internet is working, find your chargers, and get comfortable. Verify that you are able to log in successfully, and that your video and audio are functioning properly. For virtual mediation to work, it is essential to be able to see and hear all participants. (It is also very important to know how to use mute!)
3. Shake hands before tip-off.
A “joint session” is the kick-off meeting attended by all parties at the beginning of the mediation. During this session, the mediator describes the mediation process and lays out any ground rules, and then each side has the opportunity to give a brief presentation. Not all mediators hold joint sessions, and I have found that for many, this was becoming a thing of the past. Most attorneys don't like to do joint sessions for fear of upsetting the other side before the mediation even begins, but I appreciate the opportunity to have this joint session.
The pandemic had, in essence, brought back the joint session; by nature of the technology, you may be in dialogue more with the other side during a virtual mediation than if you attended in-person. At a settlement conference with a magistrate a few weeks ago, the parties reconvened at the end to read the settlement terms into the record, and ended up chatting for a while and thanking one another before saying goodbye. To me, this was proof that interaction with people is important and need not be lost, even if we are not physically together.
4. Ensure the confidentiality of your team huddle.
It's important to know that joint sessions during the video calls can be transcribed, and transcripts can be made available for all to read after the session's end. Ensuring confidentiality of attorney-client communications (and communications between one party and the mediator) is essential.
Confirm in writing at the beginning of the mediation that the separate, private caucus rooms are confidential, that conversations are not recorded, and that no transcript is being made. Ask the mediator to demonstrate the security parameters when the mediation begins, if there are concerns.
5. Be ready to get in the game at any minute.
Because you cannot predict how long the mediator will be with the other parties in private caucuses, it's almost impossible to leave your computer. You have to be prepared to get in the game at any minute. When the mediator is not with you, use that time to do paperwork or read documents on your other screen – or a second device, such as an iPad.
6. Have a backup plan.
Technology fails, phones die, internet access may glitch. Your original play may not work. Pivot when malfunctions occur, and be patient with others if it happens to them.
Obtain the contact numbers for all mediation attendees and write them on a piece of paper. Ensure you have the mediator's contact information, as well as the contact information for the mediator's office. You may also want to have your IT department on-hand to facilitate, and take a break if needed when experiencing technical difficulties.
7. Stick to the fundamentals.
The game is still played the same way, and if everyone is committed to the process, the momentum of an in-person mediation can be replicated. Pay attention and remain focused. Listen to what is said, speak clearly, ask questions, and take notes. Stick to what you know, and handle mediation the way you always have.
8. Virtual sportsmanship matters, too.
Given this virtual platform, mediators need to place more emphasis on removing emotion and remaining committed throughout the mediation. It is much easier to “go” when you merely have to click a button in the right-hand corner. It is also easier to bully someone with words on social media than face-to-face, and people are more flippant when they don't have to witness the hurt response from someone else. Sportsmanship is more important now than ever.
If you ever throw in the towel and realize soon after that you didn't mean to, the best thing you can do is call back or rejoin the meeting. Chances are, you can always start right back where you left off. And always keep in mind words of the great Kobe Bryant, who said, “You are responsible for how people remember you – or don't. So don't take it lightly.”
9. Just do it!
I've heard chatter among colleagues who do not even want to attempt a virtual mediation because they believe the psychological dynamics that make mediations work are better in person. Much of the mediator's job is to interpret body language, read the room, and take social cues from eye contact or tone. While this can't be replicated entirely in a virtual setting, our ability to connect virtually will improve with time and experience. Cases can no longer be continued, and life must go on – so give it your best shot.
10. We will meet again.
During the NBA shutdown of 2020, my mother adapted, somewhat. The Michael Jordan documentary was a lifesaver, and she enjoyed watching old games (even after she found out they were reruns, she joked that she could still watch them because she didn't have a clue who won!). But while my mother has forgotten many things in her life, she has never forgotten her love for her beloved Spurs.
The NBA is back, now, in its bubble, and my mom watches gratefully from her own. The pandemic (aka “the NBA Shutdown” to my mother) has taught us that while things may move forward differently, it's still game time. So stay safe and healthy, and make those plays virtually.
By Amanda Thompson
Amanda Thompson, J.D., is Senior Vice President of PartnerSource
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