Mediating on the Internet By Bobby M. Harges

Louisiana Bar Journal October / November 2020 174 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 175 efore the COVID-19 pandemic tively shuttered. the parties should expect when the virtual in the United States earlier I found that lawyers and their clients mediation begins. I uploaded the video to this year, I did not know many were initially skeptical about mediating YouTube.com so it could be easily acces- mediators who had conducted on the Internet. In fact, many of my me- sible to the parties.2 I now send the video mediationsB on the Internet. As a me- diations scheduled to occur in Louisiana to parties who will be participating in diator myself, I had conducted only one during the stay-at-home period were ini- mediations with me. At the beginning of mediation on the Internet. That Internet tially postponed or cancelled because the video, I explain that mediating on the mediation was a family mediation where parties assumed that mediations were not Internet is just one form of mediation and the husband, who was a member of the possible without being held in person. that most mediators also offer in-person U.S. military and stationed overseas in However, when litigants realized that mediations where all parties begin the me- Hawaii, attended the mediation virtu- America would be shut down longer than diation in the same room. Then, I explain ally via iPhones’s FaceTime feature. The initially expected, they began to try vir- that online mediations are scheduled just husband’s attorney, his wife, her attorney tual mediations. What happened after that like other mediations with the mediator and I were all present together in my of- is that cases continued to settle in virtual or the mediator’s assistant scheduling and fice. Because the husband was in Hawaii, mediations just as they did in person- to- confirming the date and time of the email it was not feasible for him to attend the person mediations. by phone, email or by facsimile transmis- mediation in person. Thus, he participated After states began to reopen, parties sion. Next, I explain that the agreement to in the mediation virtually, with the use of realized they did not have to travel long mediate will be sent to all parties for their technology. During the mediation, all par- distances to effectively mediate cases. electronic signatures prior to the media- ties could see and hear the husband, and Litigants could mediate on the Internet tion. I currently use DocuSign to enable the husband could see and hear all parties and avoid the time and expense involved the parties to e-sign documents; however, in the mediation. The mediation ended with travelling to mediations. As a re- there are many alternatives to DocuSign.3 in a settlement and all parties were hap- sult, what began as a necessity because The video then explains that, before py about the outcome. I did not give too of COVID-19 has now become an inte- the mediation, the mediator will send much thought to the fact that the husband gral part of mediations in America. That to the parties an email with the login in- was not present physically at the media- is, even after stay-at-home orders were formation so they can join the mediator tion and that he attended the mediation on lifted, parties continued to mediate on the and other parties on the designated date the Internet. The mediation occurred in Internet. They realized that the virtual me- and time. Zoom is my software of choice 2015, and, at that time, although I did not diation process could be just as effective as for conducting mediations at this time.4 know it, it was a sign of what was to come. in-person mediations. Mediators are now Parties are able to join the mediation by holding mediations in a variety of fashions clicking on the Zoom link or by calling The Value of Mediating — in person, totally on the Internet, or in a toll-free number to participate by tele- on the Internet a hybrid fashion where some people are phone. To participate in the mediation, present in the same room with the media- participants will need an electronic device One may ask, why would anyone tors and other parties are elsewhere. such as a computer, electronic tablet de- ever want to mediate on the Internet? vice or telephone. To be seen and heard, The short answer is that, initially, when Mediating After the the participants will need the device to the COVID-19 pandemic began in 2020, COVID-19 Pandemic be equipped with a camera and a micro- it was the only way that parties could ef- phone. The video also explains that ad- vance payment for the mediation can be fectively mediate after America was shut Fast forwarding to summer 2020, 5 down and many governors in the United several months after the COVID-19 pan- handled electronically. States issued statewide executive “stay- demic began in the United States, I have Moreover, the video explains that, at at-home orders” mandating that people now conducted numerous mediations on the beginning of the mediation, everyone stay in their homes in order to prevent the Internet, of all types with amazing will share their contact information with the spread of COVID-19. For example, in success. The settlement rate of the Internet the parties in the event that the parties are early March 2020, Louisiana Gov. John mediations I have conducted is similar to disconnected during the mediation. Other Bel Edwards declared a statewide Public that of the mediations I have conducted in points covered on the video are the fact Health Emergency and issued a state- person. Thus, I am happy to say that, as that the mediation is confidential, that wide stay-at-home order for all individu- of this date, mediating on the Internet has the mediation will not be taped by either als in Louisiana to protect the health and been a success for me. the mediator or the participants, and that safety of the public, to mitigate the impact the participants will be expected to con- of COVID-19 and to disrupt its spread.1 Explaining Online firm the identities of all people present in the rooms with them. Further, the video Mediations on the Internet provided a Mediations way for business to be conducted among explains the purposes of the joint ses- lawyers, clients and their opponents when After conducting several online me- sion and the caucus, as well as presents commerce in the United States was effec- diations, I taped a short video on what images that depict the joint session as a

Louisiana Bar Journal October / November 2020 174 Vol. 68, No. 3 www.lsba.org Louisiana Bar Journal October / November 2020 175 Vol. 68, No. 3 www.lsba.org general meeting with all participants and order to make the parties more comfort- Conclusion the caucus as a separate meeting between able with the mediator and with the pro- the mediator and one or more of the par- cess. The introduction to virtual media- Because of COVID-19, mediating on ties. Additionally, the video explains that tions takes only a few minutes. the Internet is beginning to gain popular- each team is able to meet privately and ity in the United States. As mediators and confidentially with its members without Tips for Representing lawyers become more comfortable par- the mediator. The caucuses and separate Clients in Mediation ticipating in virtual mediations, they will meetings of team members will be facili- become as effective, if not more effective, tated by use of the Zoom virtual Breakout Twenty-five years ago, in 1995, when than mediating in person. Even after the Rooms which allow the individual partici- I was a relatively new mediator, I wrote COVID-19 pandemic of 2020 ends, on- pants to have privacy and confidentiality. an article titled “The ABCs of Effective line mediations will continue because of In addition, the video explains to the ADR: 10 Practical Tips for Representing the many benefits they provide to lawyers participants that they are able to turn their Clients in Mediations.”7 The 10 tips are: and litigants alike. cameras and microphones on and off dur- 1) educate yourself about the process; 2) ing the mediation to control what other prepare the client for the mediation; 3) FOOTNOTES participants see and hear in their actual prepare a position paper; 4) carefully se- rooms. Because the goal of the media- lect the mediator; 5) develop a mediation 1. Mitchell F. Crusto, “Stay-at-Home, Coronavirus and Its Impact on the Right to tion is settlement, the video explains that, strategy; 6) prepare an opening statement; when the parties reach a settlement, the Interstate Travel,” 68 La. Bar J. 16 (June/July 7) listen carefully; 8) be patient during the 2020). settlement agreement will be executed mediation; 9) ensure confidentiality; and 2. The video can be found on the electronically using DocuSign. This is ac- 10) leave the door open for future negotia- Internet at: https://www.youtube.com/ watch?v=MQ2DzBLuqnM&t=197s. complished by one of the lawyers draft- tions (if there is an impasse). Those tips ing the settlement agreement with the 3. Alternatives to DocuSign are Signnow, are still valid today and I encourage law- Adobe Sign, PandaDoc, Formstack Sign, Eversign language approved by all parties present. yers to follow them. and HelloSign. Once the agreement is finalized, it is sent In addition to those tips, I offer these 4. Other online programs for conducting medi- ations are Webex, Adobe Connect, Skype, Google to the mediator or the mediator’s assistant tips to mediators and lawyers alike who who will convert the document to PDF Meet, Facebook Messenger, Go to Meeting and may be participating in virtual mediations. Microsoft Teams. and send it to all parties for their electronic First, mediators should provide as 5. Programs that can be used for processing signatures. If one of the e-sign programs is much information as possible to the par- electronic payments are Paypal, Square, Shrill, Payoneer, Apple Pay and Google Pay Send. not available, an alternative would be for ties about virtual mediations so that the the parties to confirm the settlement via 6. The PowerPoint presentation can be viewed parties will become comfortable with the on the YouTube video referred to in footnote 2. email. mediator and the virtual mediation pro- 7. Bobby Marzine Harges, “The ABCs of cess. Effective ADR, 10 Practical Tips for Representing Conducting Mediations on Clients in Mediations,” 43 La. Bar J. 142, (August Second, before the mediation begins, 1995). the Internet lawyers should meet, either virtually or in person, with their clients to explain the Bobby M. Harges medi- At the beginning of a Zoom virtual mediation process and how it will be con- ates and arbitrates with mediation, after I introduce myself to ducted virtually. Mediation Arbitration Professional Systems, the parties and explain the purpose of Third, mediators and lawyers should Inc. (MAPS) in Louisiana the session, I “share my screen” with all educate themselves about virtual media- and Mississippi. He has parties. I share the PowerPoint presenta- tions by researching on the Internet, read- been a neutral since tion from the YouTube video and explain ing articles and attending virtual webinars 1990 in the capacities of special master, media- to the parties once again everything that or other seminars about how to mediate on tor, arbitrator, attorney was explained on the video. The goal of the Internet. chair of medical review this PowerPoint presentation is to reiter- Fourth, for lawyers, it is a good idea to panels, and a complaint ate how the mediation will be conducted.6 have a settlement document prepared in hearing officer for energy regulatory matters. He is a member of the Executive Committee of This helps those participants who did not draft form with the anticipated terms of the Louisiana State Bar Association’s Alternative have a chance to view the short YouTube the settlement spelled out in advance. This Dispute Resolution Section, a past chair of the video to understand what will happen at will facilitate the resolution of the media- Mississippi Bar ADR Section, and teaches me- the mediation, as well as to reinforce for tion. diation and arbitration, evidence, torts, sports law, DWI law, and criminal law and procedure at those parties who did view the video ex- Finally, realize that virtual mediations Loyola University College of Law. (harges@loy- actly what to expect. Because virtual me- are here to stay and, just like in-person no.edu; 7214 St. Charles Ave., Campus Box 901, diations are relatively new, in my opinion, mediations, virtual mediations can be an New Orleans, LA 70118) it is important to provide detailed informa- effective tool for resolving disputes and tion about how the process will proceed in settling cases.

Louisiana Bar Journal OctoberOctober // NovemberNovember 20202020 176 Vol. 68, No. 3 www.lsba.org