Counsel today need to be comfortable mediating online or by teleconference with their parties if they’re to move files forward.
You’d be surprised how much you can get accomplished with web or phone mediation, if you follow some best practices.
TIP #1: CREATE THE RIGHT ENVIRONMENT
Take the time and set things up for a mediation to run well, whether over the web or phone.
If meeting online, ensure both you and your client have a strong Wi-Fi connection to avoid delays. If this isn’t possible, a mediation over telephone may be a better option or a combination of online and telephone.
While the parties may not be meeting in-person, that doesn’t mean a physical space isn’t important. Find a spot in your office or home with enough space to have ready any key documents you may need to reference or show during the call. A private space is important as well, since this will limit potential distractions.
Ahead of mediating online, test out your webcam and position yourself so you can be seen easily and the background is not a distraction. You want to be sitting close enough to the screen so that your face can effectively convey non-verbal cues to the other parties. Being too far back from the screen creates the impression you are disengaged.
During the actual mediation, it is good practice to mute your microphone when not speaking and silence distracting background noise.
TIP #2: PREP WORK IS CRITICAL
“Success occurs when opportunity meets preparation.” This adage is especially true when you are face-to-face online with the other side or on the other end of the telephone.
Yet I often see counsel and their clients delay the start of the mediation to strategize about the case. This can be very off-putting to the party on the other end waiting for the online or phone mediation to get going.
Being ready to go right at start time is crucial for a few reasons. If you’re unprepared, it sends a negative message to the other party that you’re not taking the mediation seriously. Or even worse, that the delay is some kind of negotiation tactic.
Getting to an agreeable finish often starts with a good start. It shows the parties are there to get things done and resolve the file.
TIP #3: PREP YOUR CLIENT EARLY, TOO
Well before starting the mediation, be sure your client understands what the process is and isn’t, and the role of the mediator. Do this with a telephone or online chat with them prior to the mediation. It can be a great time to test their webcam and phone reception and also go over key facts. Be sure the client understands:
- A mediation is not another discovery or their trial.
- The role of a mediator is to be neutral.
- The goal of a mediation is to convince the other side the strengths of your position, not the mediator. (Although having well-articulated, fact-supported arguments will help the mediator highlight the strengths of your case to the other party.)
- There is often a big difference between the monetary amount being asked for in a claim, the opening amount in negotiations and the final settlement figure.
- There is a give-and-take during mediation and typical of the negotiation process.
- Whether or not they will speak during the opening, and if yes that they know what they will say.
TIP #4 PREPARE FOR THE UNEXPECTED
Keep in mind technology problems can and will happen. Prior to the mediation, make sure you
have contact information for your mediator and client including email addresses and cellphone
numbers at the ready should you need to use them.
TIP #5: KEEP OPENINGS CONCISE AND EMPHASIZE COLLABORATION
When you’re communicating over the telephone or via web, while it can be effective, it is not the same thing as being in the same room. Keep in mind there is some degree of separation not experienced during a face-to face mediation.
Be open to some “small talk” at the beginning of the mediation to allow for connection and lay the ground work for building rapport.
And then stick to the essentials. While you want to lay out a full picture of your case, the most effective openings I’ve heard don’t repeat your case highlights and strengths, which are already outlined in your Mediation Memorandum. They address the other side’s strengths and issues with your case.
By doing this, you give the other parties something to consider and hopefully rethink some of their assumptions and overall position. This also shows empathy and understanding for the opposing party’s viewpoints and demonstrates everyone can work together towards a resolution.
Settlements are reached when parties believe everyone is approaching the mediation with the right attitude, have heard out the other side and are willing to take each other’s perspective into account.
Follow these five tips, and you’ll see progress in your mediation by web or phone, just as you would in-person.