Online Mediation in Personal Injury Cases

Mediation provides parties in a lawsuit the ability to get together, share information through a neutral facilitator, express emotion about the dispute, and brainstorm potential settlement options. The opportunity for people to see each other, and to be together to focus on the case, can be a magical combination and often results in settlement. When I was an active litigator, I made it my habit to meet with my opposing counsel in person to discuss the case because I found that it reduced the letter writing campaigns and increased cooperation. Thus, when I first heard about online mediation, I was skeptical. How can a process that depends upon accurate communication (including nonverbal information) possibly work when people are not with each other? 1 I also worried about confidentiality: how could the parties feel comfortable that no one was eavesdropping? Finally, I doubted that the participants would give the process their full attention if they were not corralled in a conference room. What would stop the participants from turning their attention elsewhere? Since becoming certified to mediate online, I have become comfortable that online mediation preserves the process, and, in some cases, provides benefits that the in-person process cannot. While I cannot imagine mediating entirely online, I believe it can bring value to personal injury and other cases.

How it Works – The Mechanics of Online Mediation I use the Zoom.us videoconferencing platform for online mediation. Before the scheduled mediation, all participants take a few minutes to create a free account and download the Zoom app on their desktop, smartphone, or tablet. Access to the internet is required, and if a party is using a desktop computer instead of her smart device, she would need a camera and speaker.

After logging in, the participants arrive in a virtual waiting room. Once everyone has arrived, the mediator places the parties and their lawyers into pre-assigned, private rooms: the online equivalent of having a receptionist usher the parties into their own conference room. All of the members of a particular room can see and hear each other; no telephone is required. Each person can either show their surroundings or choose a background to mask their physical location.

As the mediator, I then send a chat to seek permission to enter the private conference room, which is the online version of knocking on the door to maintain privacy. Once someone enters, everyone can see who is in the room; there is not a way to silently enter or to secretly observe.

When ready, the mediator can move everyone into a joint session, back to caucus, pull out the lawyers or parties only, and any combination of participants, just as people could do in person. The mediator maintains control of assigning each person to a room, thus protecting the confidentiality of the process.

If the parties reach an agreement, the lawyers can work collaboratively on the agreement through a shared screen pro

cess. Once the agreement is completed, the mediator sends the agreement to all of the participants with the ability to sign with DocuSign. DocuSign does not require the signers to have an account, and everyone immediately gets a secure copy of the fully executed agreement.

Online Mediation Maintains Protection of the Mediation Process Privacy and Confidentiality. By statute, mediation is completely confidential. 2 Nothing that the parties discuss during mediation can be used outside the mediation. The mediator cannot be subpoenaed or testify about what happened during mediation. Additionally, anything that the parties discuss with the mediator during a separate caucus (where the parties are separated into different rooms) remains confidential unless and until the person grants the mediator permission to share that information. Online Mediation also protects privacy and confidentiality. As discussed above, the Zoom platform provides for separate caucus rooms so that attorneys and their clients have privacy when discussing the case, and there is no way to eavesdrop or listen without the participants’ knowledge.

The Zoom platform has a feature that allows for the recording of the proceedings; however, the mediator can turn off this feature when scheduling the mediation. Of course, nothing stops a participant from recording the proceeding independently (such as a screen/audio record or recording on a separate device); however, that can also happen during an in-person mediation. The rules for the mediation in both forums prohibit the recording of the mediation.

Non-Verbal Communication. Because a majority of human communication is non-verbal, conducting a mediation where the parties are not sitting across from one another concerns many people. Originally, online mediation consisted of chats, texts, emails, and telephone calls. Without a video component, I agree that non-verbal communication was compromised. With the video conferencing feature of the Zoom platform, however, nonverbal communication remains intact. The participants can hear intonation and see gestures and body language. The only thing missing in the video conference is the ability to shake hands or otherwise touch one another.

Focus on the Mediation. Mediation provides an opportunity for the participants to carve out time to focus on the dispute and to dedicate their attention on the problem and the potential solutions. 4

If the parties stay in their home or office, what prevents them from splitting their attention? This issue must be addressed when scheduling the mediation and when signing the agreement to mediate, and it may prevent a particular case from being appropriate for online mediation. The participants must commit to avoid other calls or interruptions. Even though the participants are not in the same physical location, the video feature exposes anyone who is working on something

else. Clients and lawyers are in the same private video room and will know when another participant is distracted and not paying attention. Benefits of Online Mediation Convenience. Online Mediation allows all parties to participate from anywhere they have access to the internet and a computer, tablet, or smartphone. This convenience can help with scheduling because no one has to travel. In personal injury cases, this can be particularly helpful when a plaintiff is severely injured. The plaintiff does not have to travel or arrange for a location that meets the plaintiff’s physical or medical needs, but the other participants can see and hear directly from the plaintiff. On the defense side, online mediation may encourage the out-of-town defendant or insurance adjuster to participate directly in the mediation. The convenience also helps convince busy doctor-defendants in medical malpractice cases to mediate because those doctors can stay in their office. No one has to fight traffic. Without the need to travel, the mediation takes much less time than it would if it had been conducted in person. The convenience also allows a mediator to end a session and reconvene with less disruption to the participants’ schedules. For example, if the parties decide that they need further information to make an informed decision, the mediator can end the mediation and reconvene knowing that the parties will have an easier time rescheduling the mediation than they would if it were a traditional in-person mediation. Some online mediators anticipate breaks and schedule mediations in two-hour increments. Comfort. Mediation can be a high anxiety event. Allowing parties to participate in a comfortable environment promotes the productive expression of emotion. Modulated Emotions. In law school, we were taught to think rationally and logically. This rational model focused on reducing or eliminating emotions when making a decision. Over the last 25 years, however, neuroscientists have discovered that emotions play a key role in decision making, even when we believe we are being rational. Emotions form the context in which we see the world and are therefore necessary to make decisions. 3 No matter what the dispute is about, it began with people (after all, corporations can only act through the people who work there), their needs, belief systems, and experiences. To have a productive conversation about how to resolve a dispute, a mediator needs to learn more about the people involved and what motivates them to continue fighting instead of resolving. Failing to understand and address the emotional aspect of the dispute often ends a mediation in impasse.

Specific emotions sway decision making in predictable ways. For example, feelings of fear often lead people to choose the safe option and to avoid risk. Anger tends to breed over-confidence (“I’m going to destroy you in court!”), and to view events through a lens of injustice (“It’s the principle of the thing!”). Happiness (not common in mediation!) tends to cause people to make decisions without taking the time to understand the consequences of any given decision. In short, online mediation can help people express and temper strong emotions, which assists in settlement. ‘‘ Online Mediation allows all parties to participate from anywhere they have access to the internet and a computer, tablet, or smartphone. This convenience can help with scheduling because no one has to travel. In personal injury cases, this can be particularly helpful when a plaintiff is severely injured.”

Cost Savings. Personal injury lawyers sometimes represent clients who live or work in different counties, states, or even countries. These same lawyers tend to litigate in counties other than where they live and work. Online mediation saves airfare, hotel, and other travel expenses; this leaves more money to use for settlement. Especially in automobile accidents where policy limits restrict the potential gross settlement, the added travel expense directly impacts the amount the plaintiff can hope to recover.

Ease of Information Sharing. The Zoom platform allows each person to share that person’s screen with others. For example, participants can present a slide show, photographs, video, or other documents relevant to the case. Screen share also allows parties to annotate or collaborate on documents. The best part? No one has to worry about projectors, screens, other equipment, or forgetting something back at the office. While the parties see the shared screen, they continue to view images of the other participants, which allows the parties to watch each other’s reactions. Unlike an in-person mediation, the participants also see their own image; this helps them monitor their own body language and reaction to the process.

The encrypted platform also provides a “share document” feature that allows any of the participants to securely send documents to any other participant. Participation. Because of the convenience, the parties can include third parties in the mediation without additional expenses. For example, an expert witness may have critical information, but it might be too expensive to pay the expert’s hourly rate to appear live at the mediation. Allowing that expert to join everyone online greatly reduces the cost of that expert’s participation. Further, if it appears that the ultimate decision-maker is not present, it is easier to involve that person online immediately and for that decision maker to witness what is happening rather than to rely on the summary report of those present.

The Green Factor. The transportation industry accounts for nearly one-quarter of the world-wide carbon emissions, and automobiles account for three-quarters of the total carbon emissions in the transportation industry. As more people and corporations focus on reducing carbon emissions, the ability to save people from traveling to a mediation serves as a motivation for on-line mediation.

Summary Although we may bemoan the shift from communicating in person to communicating online, it is here to stay. Doctors, therapists, and accountants have all begun to offer online visits and consultations, and the future promises even more online services for attorneys and their clients. Online mediation is unlikely to take the place of mediating in person, and it is not appropriate for every case. However, because of its benefits, lawyers should at least consider using online mediation in each of their cases.

Heather (Kubiak) McFarlane offers in-person and on-line mediation. She is a full-time mediator with over 20 years of trial experience. She recently obtained advanced mediation training at Harvard Law School’s program on negotiation and is passionate about sharing what she learned to help others.

Endno tes 1. This article does not discuss online mediation conducted with artificial intelligence instead of a mediator. Those services, such as CyberSettle.com, present different issues than mediating through videoconferencing technology. 2. A s an interesting side note, did you know that the Texas Mediation Statute cloaks non-verbal communication in confidentiality? “Unless the parties agree otherwise, all matters, including the conduct and demeanor of the parties and counsel during the settlement process, are confidential and may never be disclosed to anyone, including the appointing court.” Tex. Civ. Prac. Rem. Code § 154.053(c). 3. In my study of this topic, I was fascinated to read about the research of Antonio Damasio, a professor of neuroscience psychology at UCLA, who studied patients with injuries that had destroyed the part of the brain that processes emotion. His discovery: without emotion, a person cannot make decisions. To read a summary of this study that is fully presented in his book, Descartes’ Error, go to https://www.thecut.com/2016/06/how-onlyusing-logic-destroyed-a-man.html.