HR Legalist

Mediating While Socially Distant – My Surprisingly Uneventful Experience in Uncharted Waters

Most federal courts now require employment discrimination cases to go to mediation at least once before they go to trial. See my recent post on this topic from simpler times: “It’s time to mediate a case with an ex-employee. Now what?” But with the COVID-19 pandemic and its associated social distancing, good old face-to-face mediation has become impossible. As weeks have turned into months, the pressure has increased to keep moving cases forward to resolution, and mediators have responded by offering telephone or video conference mediation. I recently was a participant in such a telephone mediation.

The day started with myself and my client calling into the mediator’s conference line, where he made fairly typical remarks to set expectations for the parties about mediation, covering topics like the value of compromise settlements, confidentiality, and the fact that communications during mediation cannot be used for other purposes in the case. After that was completed, he had a call with the plaintiff and the plaintiff’s attorney. He then called me on the number I had given him, and I conferenced my client on for a caucus session. The mediator then hung up and I spoke privately with my client. The mediator relayed offers and counter-offers, and used his usual tactics (trying to unpack the parties’ positions, harping on the cost of defense, and using bracketing to try to reduce the gap in the parties’ numbers) to convince the parties to adjust their positions. At one point, I made a call to the attorney for the co-defendant.

What was the same:

• The mediator used basically the same tactics to push the parties to adjust their positions;
• The sequence of events was roughly the same as I would have expected in person;
• The pace of the day and overall length of the mediation was about the same as I would have expected in person.

What was different:

• There was no opportunity to “size-up” the client representatives for the opposing parties in person;
• There was no sitting in a conference room for hours waiting for the mediator to come back;
• There was less opportunity to build a relationship with the client over the course of the mediation.

Overall, I thought that the process was almost as effective as in-person mediation, but with some caveats. The main suggestion I have for preparing for a telephone or virtual mediation is to invest more time than you otherwise would to build a relationship of trust with your client going into the mediation. You will not have the opportunity that you would normally have to do this during the mediation, and you will need to have the client’s trust if you need him or her to make a significant concession – which often becomes necessary at mediation in order to reach a deal.  With proper planning and a good understanding of the strengths and weaknesses of your case and the other party’s case, remote mediation can be successful.

The Author is approved as a mediator by the U.S. District Court for the Western District of Pennsylvania.

The information contained in this publication should not be construed as legal or medical advice, is not a substitute for legal counsel or medical consultation, and should not be relied on as such.