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January 2021 Tips by Fran – New Year Reflections on Zoom Mediations After 2020

Mediator and InstantMediations.com Advisor Fran Brochstein, whose mediation experience spans decades, provides mediation tips to mediators and parties engaged in dispute resolution. She is based in Marble Falls, Texas and can mediate online with parties from anywhere. Contact her through her site Familylaw4u.com at Fran@Familylaw4u.com. If you have any suggestions for future columns, please feel free to contact Fran.

What it used to be like before the pandemic and how I got on the right track.

What a difference a year makes. A year ago I had never used Zoom. Then Mac-Arthur Pierre-Louis called me about InstantMediations and Zoom. I had never really considered Zoom until his call. He showed true patience in training me to use Zoom to mediate. And truthfully it was scary at first.

I had to give up some of my good practices I had developed when mediating in person. For example, while in person, I would allow third parties to stay in the room if I felt they were the decision maker or could help me negotiate. I know there are many mediators who do not share my view on third parties, but I’ve found third parties can make or break a mediation. Also, when mediating in person there were times in a case when the attorneys would meet in the kitchen or hallway and begin to hammer out a settlement, or I would bump into an attorney in the hallway and we would chat informally about the issues. Finally, mediating in person allowed parties to come to my office and stand on neutral territory. And meeting in my office allowed everyone to be fed with snacks, which encouraged them to relax. All these things cannot be done so easily via Zoom mediations, or else I’ve had to think up “virtual” solutions to compensate. For the most part though, it has worked out. Zoom mediations are not absolutely good or absolutely bad when compared to in-person mediations; they are just different.

The beginnings were not easy.

It was all so scary at the beginning! Yet I convinced some girlfriends of mine to practice online mediation with me. Those initial Zoom practice meetings were frustratingly funny in hindsight.

I went through the “technical glitches” with Zoom as I learned the platform. Overall Zoom works pretty good. And I’ve learned lots of tricks to make the Zoom mediation run more effectively. For example, I find myself mouthing, “unmute,” or lifting my hand to my ear to get someone to unmute themselves. Who would have ever imagined that such motions would be part of 21st century mediation practice.  I’m still struggling a bit with quickly getting mediated settlement agreement signed, but I have made progress in this area too. Lastly, I recall the internet connection issues I experienced when trying to get online. I eventually hard-wired my computer to my internet modem, and I even upgraded my internet speed.

How it is now and the benefits of Zoom.

Now I use Zoom regularly. I believe that Zoom will continue to be used even after the current health crisis is over. I know that some family law attorneys really like Zoom because they don’t have to travel up to an hour to and from the mediator’s office. I have also heard that attorneys hope uncontested hearings or finalizing uncontested cases can continue via Zoom. In Houston, when I had to appear in court as an attorney, I often spent 2 hours or more driving to the courthouse, parking, going through metal detectors, waiting on an elevator, and then waiting to approach the bench for a simple 3-minute hearing. Now all of that can be done from the office or home.

I like Zoom because it has reduced my overhead. I have no office rent and do not have to provide snacks and drinks to participants. I can wear a nice top, but do not need to spend a small fortune to beautify the rest of me.

Another advantage of Zoom mediations is that if the parties request it I can break up my usual 4 hour mediation sessions into shorter sessions. I try to avoid mediating over 6 hours because of mediation fatigue. I don’t want people to just be so worn out that they will agree to settle just to escape from the mediation. Note: I have done several mediations in person that went up to 12 hours, but everyone wanted to continue. I’ve discovered most cases longer than 8 hours usually settle.

On the negative side, I do find that Zoom mediations can be somewhat tiring on my part and I don’t always feel like the participants are fully engaged. I have trouble reading their subtle body language. And oftentimes, attorneys sometimes are still in litigation mode and not settlement mode. And occasionally there is the problem of third parties lurking off screen listening in to the conversation.

What the future may bring.

I have heard from several family law attorneys in Texas that their divorce business is booming. I guess that when people had to stay home with their family members and were not able to continue with normal routines, that it increased the stress in their relationships. I have heard on the news that domestic violence has been higher since everyone has had to stay home.

I do hope lots of it can be solved using online mediation.

I know that we are all looking forward to going back to “normal.” I’m not sure how that will actually look in 2021, but I feel confident that Zoom is here to stay.

Happy New Year and may all these video-conferencing tools like Zoom continue to help us for good to do good.