How To Screw Up a Mediation in our Brave New World

by Christopher Nolland

December 2020

Christopher Nolland

FUBAR Zoom Mediation:* A Field Guide for Mediators

* “Fouled” Up Beyond All Recognition

Almost all cases that are not resolved by dispositive motion will likely be mediated. Indeed, many disputes are now mediated even before litigation is filed. We, as mediators, are at the core of this process. Our actions or omissions are often the difference between success, failure, or worse. We face even more challenges in the Brave New World of remote mediation, social distancing, the inability or unwillingness of participants to travel, and the "work form home” dynamic. 

This somewhat “tongue in cheek” white paper will address how you can mess up the mediation, for you, the lawyers, and their clients. Following these guidelines will help ensure: 

1. a poor result – indeed, you may even make things worse; missed opportunities to make a difference for the parties; unhappy lawyers - your target client market; the disdain of the participants; developing a reputation as a "phone-it-in" mediator - with the inevitable negative marketing, practice development, and financial impact; 

2. knowing deep down that you could have done better; and 

3. losing control of the process because of failures to implement best tech practices. 


Remote mediations provide new and outstanding opportunities to mess up your mediations

1. DON'T Make Sure You And The Participants Can Fluidly Navigate and Use Zoom 

No need to practice and update your Zoom skills. You can easily figure things out “on the fly”. This tech stuff is really intuitive and the participants, who are paying you good money, will understand that you can't be expected to have invested the time and energy to know how every little thing works. They'll be just fine with you learning it “on their dime" and while they pay for their lawyers' time. Plus it will likely be a bonding experience for you all to learn new things together. 

Let the participants fend for themselves. If counsel needs help learning to use and navigate Zoom features such as using Screen Share, whiteboards, Gallery and Speaker views and the like they should figure it out or can find some online tutorials. After all, you did so and you also walked to school 12 miles in the snow in your youth and it didn't hurt you one bit. You're not here to be their Zoom coach. They need to learn self-reliance and to take the initiative - not to leech off the generosity of strangers (or one who will soon be a stranger!). 

Don't offer to speak with counsel before the mediation to make sure they can access and use Zoom features, answer any logistical questions, address any privacy concerns and how breakout rooms work, etc. You can just do it on the day of the mediation, waste some time, and have counsel look like they are fumbling around in front of their client. 

Don't send counsel and the other participants any written materials you have to help with their Zoom technical or similar questions. Why make it easy for them to have an easily accessible technical reference guide they can send to clients unfamiliar with Zoom. After all, there are those tutorials mentioned above that are available on the internet. They can do a Google search on their own. It will help them keep in mind the self-reliance quality mentioned above. 

Don't send the Zoom link to counsel until the morning of the mediation. That way everyone can be kept in the dark and be searching their email for the Zoom link that wasn't sent and you increase the potential for a communication or other glitch between the lawyers and their counsel. A little anxiety will also keep everyone on their toes. 

2. DON'T Worry Too Much About Security and Confidentiality - It Will Probably All Work Out For The Best 

Use your personal Zoom link with the same password for every mediation rather than generating a new link and password. That way, anyone who has ever mediated with you remotely can intentionally or accidentally barge into the mediation session. Talk about fun stuff and a great story for the grandkids. Make sure not to enable the “Waiting Room ”function - this allows even easier access for the uninvited to join the Zoom meeting 

Don't disable the recording function. It will be great to let folks record and then play the other side's mediation presentation to the Court or other tribunal or, even better, maybe post it on the internet. How cool would that be! Of course, don't give any thought to reminding participants they can't record or take pictures of the screen with their phone or other devices and neglect to add that provision to the mediation agreement counsel and the participants sign in advance of the mediation. 

Leave the chat feature enabled. That way when one side sends out a chat message intended for just their group and it accidentally is sent to the opposing side you can be the hero and jump in to calm everyone down and save the day. Of course, if that inopportune chat message blows up the mediation it's their fault not yours. 

Don't worry about being on a secure network or in a non-public venue. Really, no one in Starbucks or on their public wifi would be interested in the mediation or try to overhear what was being said and those pesky Russian hackers have better things to 

Don't Have Robust Tech Capabilities Or Solid And Easy To Implement Back Up Plans In The Event Of A Tech Failure 

An internet outage, a short power outage, computer crash, or hard drive failure hardly ever happens. People are very understanding and forgiving when tech "glitches" happen and derails the mediation even if easily preventable or worked around with a backup plan. The following easy, relatively inexpensive, and effective tech planning, fixes, and workarounds are only for worrywarts: 

Don't plug your ISP modem, router, network switch, desktop computer or laptop, into an UPS battery power supply backup so that a temporary power outage of a few minutes or a power surge won't crash your critical devices; Don't have an alternative internet connection to switch to if your regular internet goes down. It's way too much trouble to take the 15 minutes to learn how to use you phone as a wifi hotspot that can allow your computer to connect to the internet over the cellular network. Of course, you shouldn't speak with a trusted neighbor and exchange passwords for each other's secure guest or primary wifi for emergency use; Don't get everyone's phone numbers and provide yours at the beginning of the mediation so you can communicate if there is an internet break down; 

Don't spend the relatively little money needed to have a spare laptop fully configured and loaded with the Zoom app in case there is a computer hardware failure; 

Don't upgrade your internet to a faster service, especially if your family members are also using the same internet connection for their own Zoom meetings, school, or a gaming marathon; Don't invest in a newer computer with decent speed and other devices with higher end tech specs. A high quality separate webcam will almost always have a better camera and built-in microphone than is typically found in all but the newest high end laptops. A few extra dollars spent on a great webcam and microphone can make a huge difference in the video and audio quality - literally a difference in the image you project. Why spend even the few bucks required to look (and be) more professional. 

Don't Get So Caught Up In The Technology That You Lose Sight Of More Traditional Ways To Mess Up Your Mediations 

3. DON'T Press for And Study Mediation Submissions. 

Counsel and the parties can easily explain at the mediation all of the details, dynamics, and factual, substantive, procedural, and evidentiary issues in a case which has been litigated for 2 - 3 years, involving millions of documents and scores of depositions. 

If pre-mediation statements are provided, just give them the “once over.” After all, its just lawyer BS, isn't it? 

4. If it is a particularly complex mediation be especially careful not to: 

fully understand the substantive issues of the case, get up to speed on the procedural posture of the case, find out about any special circumstances which may affect the mediation, figure out any client control or client expectation issues, determine whether or not there is an unbalanced view by one or both parties (or counsel) about weaknesses or problems with their case. 

Under no circumstances consider meeting with or having a pre-mediation Zoom conference with the lawyers (or their clients), even where it might be helpful to explain the dynamics or any delicate client issues. This also provides an opportunity to work through any tech issues or questions. 

5. DON'T Explain To the Non-Lawyer Participants the Mediator's Role 

They don't need to know about any of the following: 

Mediator is not a judge or arbitrator; mediator will not make a decision; the likely value of an opening or joint session; the dynamics of private caucuses with the mediator; or mediation protections and confidentiality. 

There is no need to explain that the mediator's role is: 

To settle the case to create and keep momentum; to change people's perspective about the case; to determine the parties' true views about the case; to be the voice or reason and objectivity and sometimes to call BS, even if it is not very palatable for them to hear it.

6. Don't Think In Advance About How to Best Use the following Mediator Techniques: 

Developing a friendly relationship with the parties. Get people talking and look for verbal leaks or verbal cues. Carefully read body language for non-verbal cues Make statements to see what reaction or lack of reaction is engendered 

Find out who are the "hawks” and “doves” in the room and whether there are differences of opinion in the group. Determine practical economic issues of the parties or counsel. Understand any insurance issues, including coverage, reservation of rights, self-insured retention, primary and excess limits, and the like. 

7. Don't Inquire About Participants' Logistical Issues – after all, this is not kindergarten. Even the most inexperienced, unsophisticated, and unbalanced non-lawyer client should intuitively know: 

  • They should plan on a long day and make sure they have no commitments that evening.
  • That if there are others that need to be consulted, to make sure they have their day time and evening telephone numbers
  • The need to be patient — that mediation is a process and that trying to rush increases the chance of failure
  • That even if the case does not settle that day, the mediation is not wasted. This is an opportunity to obtain and give a lot of information and may well lay the foundation for a future settlement.
  • To be prepared for lots of downtime.

8. Skip The Joint Session, and the Opening Statements. 

Always skip the joint session as a matter of course. Let's not waste time! Let's get it on! No point in getting everyone "in the mood." We can just stick the parties immediately in separate conference rooms and let them stew and keep their thoughts to themselves while you are in the other room. This approach ensures the parties will not have a chance to jointly develop rapport and trust with you together in the same physical or virtual room. It also guarantees the participants can't articulate their concerns and perspective directly to one another, perhaps for the first time. reinforces to the parties that (a) they need not care what the other side thinks; (b) they aren't going to hear anything they don't already know; (c) insights into their opposite's thought process and perspective won't be useful.; and (d) after all, the only thing that's even marginally relevant to the mediation and settlement is what they want and their one-sided view of the case. 

DON'T use opening comments in a joint session to get commitment from the parties and counsel that you can draw on later in the day to prevent or forestall an impasse. 

Don't use your comments in the joint session to demonstrate that you know the case, are organized, and have read all of the pre-mediation materials. It's better to keep all that a mystery - or better yet not to do it at all. 

DON'T bother to listen carefully to each side's opening statement, much less take notes, pick up on body language, non-verbal cues, or the like. 

9. Party Representatives. 

Give no thought to making sure in advance that the parties bring the right client representative – the person(s) with practical decision-making authority. There is no need to ask counsel to let you and the other side know in advance who will attend the mediation. Let's make it a surprise when the assistant to the summer intern shows up as the party representative. 

Don't mention to the participants the need to arrange to have any remote decision makers or influencers available by phone or Zoom. It's too much bother to suggest they take a few minutes to have the parties get cell and home telephone numbers in case the mediation goes late into the evening. Much better for everyone to be sitting around waiting for non-attendees to return a voice message, email, or text after they finish dinner or a movie. 

Make sure you have personal scheduling conflicts which require you to leave the mediation by early evening. This will ensure you need not deal with an epiphany or breakthrough or settlement opportunity which presents itself late in the day. Of course, don't tell the participants about your time constraints until late in the day. If there's an early impasse they will never even know of your schedule issues! 

10. DON'T Encourage Counsel To Use Mediation as an Opportunity to Evaluate (or Reevaluate) Their Client's Case and Educate the Client. 

There will come a better time for them to tell their client that the case which was a “sure winner" when they were pitching for the business and sending fulsome bills may have a few warts after all. Why encourage them to take advantage of this natural platform and event to review the case development, its current strengths or weaknesses, and practical economic issues and to use the mediator to help facilitate the re-evaluation? 

Don't encourage counsel to use your help with client control or expectation issues, with insurance carrier issues, a cost-benefit analysis of continued litigation, or other sensitive matters. 

11. DON'T Prepare in Advance To Address the Legal, Factual, and Practical Arguments and Counter-Arguments to Issues that Will Likely Come Up During the Mediation. 

After all if you wanted to think deeply about legal or litigation issues, you would still be a lawyer or judge. 

It's more fun to be spontaneous and extemporaneous. 

Don't read in advance important materials (pleadings, court rulings and orders, legal authority, contracts, deposition and hearing transcripts, “hot” documents, etc.). Time enough at the mediation proper. 

12. Why Bother To Take Good Notes at the Mediation? 

Who cares about the parties' opening comments? 

Having good notes about what happened at the mediation won't be useful in future mediation efforts or if there is an issue about what happened at the mediation or when formulating a Mediator's Proposal. 

Even actual settlement offers and counters need not be memorialized, especially when there are complex, multi-faceted issues. You have a great memory and your handwriting is lousy anyway. 

You can easily keep straight in your head what the parties ask you to keep confidential. It's pretty much common sense, isn't it? 

13. End the Mediation Abruptly and Without Warning Once You Decide It's “Not Happening Today.” 

Let or tell one side to leave without informing the other group. That way it is a fait accompli. 

Communicate by your words, actions, body language and demeanor that further efforts are fruitless. After all, you can predict the future so why waste everyone's time. 

Don't even think about getting counsel or the principals together to brainstorm and try to jumpstart or re-start the mediation process before concluding there is an impasse. 

14. Think of the Mediation as an Isolated Event Rather Than Part of a Process. 

A dispute that has been festering for years can surely be resolved in 8 to 10 hours. 

Why try to take the time to lay the foundation for a future settlement? 

15. Ignore Ethical Considerations. 

Why tell the parties about all of the settlement proposals by the other side? It will just piss them off to hear stupid proposals. 

16. Most Importantly, To Ensure Failure Don't Follow Up. 

If they want more of your stellar work they should come back for another mediation (and another fee!) 

Why should you have to do extra work because counsel and their clients were unreasonable at the mediation? 

Really, if you wanted to work really hard, take calls in the evening and on weekends, and be available “above and beyond,” you would just practice law and make the big bucks. You made a lifestyle decision and the parties and counsel should understand the choice you made and understand that they just aren't a priority, especially after hours. 

17. On Second Thought, Even More Importantly. 

Just go through the motions and "phone it in." Conclude it's a successful mediation if you collected your fee and the check cleared and there is no criticism- at least to your face. Give up - and let it show by attitude, body language, or by words and actions. Don't “own” the mediation dynamic, the process, and the results. Too easily get to the point psychologically where it's “obvious" (at least to you that there is nothing more to be done). Don't care enough.

Or, if you want an effective mediation, you could successfully learn how to use Zoom and make sure that your parties know how to as well!

Christopher Nolland has been a mediator and arbitrator since 1993. He has conducted over 2,700 mediations and numerous arbitrations, primarily in business and commercial matters and fiduciary cases. Nolland's mediation and arbitration practice is national in scope and focuses on large, complex, multifaceted disputes. Nolland is an Adjunct Professor of Law at SMU Law School and for the past 25 years has taught a full semester course on Negotiation to 2nd and 3rd year law students and LLM candidates.

In addition to his neutral ADR practice, over the past 20 years Nolland has established a national practice as Special Negotiation Counsel in significant, complex disputes and litigation, acting as the primary negotiator and point person for settlement strategy on behalf of one party (in a non-neutral role). Nolland's Special Negotiation Counsel activities account for a substantial portion of his practice. In that role Nolland is typically the primary point of contact with the mediator.



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