This is an update to our last alert on “Mediations in the Time of COVID-19: The New Normal?”.

There are many video conference providers out there. Deciding which online platform to use for highly sensitive discussions is fraught with difficulties and judgment calls. Many mediations (and court hearings) are being conducted using the online video platform Zoom.

Reuters have reported that a Class Action is being brought against Zoom and key individuals. The Defendants are accused of making "materially false and misleading statements" regarding the Company's business, operational and compliance policies, including the adequacy of its data privacy and security measures. It is alleged that contrary to Zoom's assertions, the Company's video communications service was not end-to-end encrypted, as a result of which, users of Zoom's communications services were at an increased risk of having their personal information accessed by  unauthorised parties.

Liaising with your firm's IT experts and clients to weigh the pros and cons of each online platform is key. What are other options and how do they work in practice?

Remote Mediation with Webex

  • Webex Meetings has the ability for the host to move attendees to the “lobby” at any time and to lock a meeting once everyone has joined, or at any point in time, to prevent others from joining.
  • When moved to the lobby, the attendee is still connected to Webex but is unable to see or hear anything from the meeting until the host allows them back in.
  • If the mediator (or someone on the mediator’s staff) were the host, they could move people out to the lobby so those remaining could have a breakout session.
  • Documents can be shared on the screen.

Remote Mediation with Microsoft Teams

  • This is a collaboration tool designed to improve internal communication and is less useful for conferences with people outside of the company network.
  • It is a popular choice for businesses that use Office 365 products, as it is packaged in with the Office 365 suite and syncs up well with other Microsoft technologies and other software such as SharePoint.
  • However, this lacks many third-party integrations and lacks some advanced conferencing features such as multiple screen sharing.
  • Users have been asking for a breakout room function and this may happen with the increased demand of the current situation.
  • Paying more for the Business Plan version includes advanced security protection.

Remote Mediation with Business Skype

  • The 'meeting' can be kept open for several days, so the same link can be used to join each time.
  • Having a group of smaller pictures on a split screen can be useful for pre-mediation discussion.
  • Videos can be uploaded for everyone to watch, but additional documents must be circulated by email or by other means.
  • If not in the same room, parties can communicate amongst themselves by text and email, or mute the microphone if in the same room (there are no breakout rooms).
  • Parties can be grouped by their allegiance in terms of their window showing them on screen. Both also have a chat function for written communication between participants.
  • The mediation can be recorded on Skype and the recordings uploaded to a common sharefile.

Some useful links to secure video conference service providers

Conclusion

Like running a marathon, the more legwork you put in beforehand the easier it will be on the day and the greater likelihood of a successful outcome. With any mediation we like to spend a lot of preparation time with the clients getting them to understand the dynamics of the virtual mediation and considering: the right team (we favour at least the client's deal maker and numbers person plus the right lawyer); what is going to be said in the opening session (we like the client to have a central speaking role, not least so they take ownership of the mediation and get a chance to "clear the air"); and the shape of a settlement agreement. We favour having a draft settlement agreement in your back pocket, as prior thought will then be given by the client to e.g: calculating the realistic quantum of the claim; identifying legal costs; interest and tax issues and considering the client's wants and gives. Ahead of time, we also want to plan with the clients their opening offer (we favour "cutting to the chase" early so that time and energy is not focused on litigating the problem but creatively finding a solution) and bottom line (as, if they want success, they need to make an offer the other side cannot refuse). Finally, the mediation team needs to be prepared, agile, laser focused and above all committed on the day.

We think mediation provides substantial value for money for clients. Even if no settlement is reached, a lot of the thinking and work can be recycled and knowledge about the other side's case and commercial drivers is never wasted. In any event, the costs will be modest when compared to the costs of trial and enforcement, the litigation risks and the loss of management time and control.

The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP. Specific legal advice depends on the facts of each situation and may vary from situation to situation. Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.