Mediation Minute

Courts Issue Orders Requiring Video for Zoom Mediation

May 17, 2023

Henry Mediation offers Zoom mediation through™ for lawyers and clients seeking to conduct mediation by remote means. A recent survey of mediators conducted by the NADN found that the overwhelming majority of mediators are using Zoom or remote means approximately 75% of the time. Those who predicted in-person mediation would return to pre-pandemic levels were wrong. Virtual mediation is market friendly – safe, cheap, efficient, and here to stay. Most agree settlements rates have not been meaningfully affected. 

Both state and federal courts permit mediations to occur remotely, although some local rules default to in-person attendance in the absence of an agreement or court order. Unfortunately, uniformity among the courts is sorely lacking. Some courts permit remote attendance by rule so long as the parties are in agreement, while other venues require a motion to permit remote attendance. Importantly, a growing number of mediation orders or local rules state that remote attendance requires operational audio and video. A small percentage of participants violate local rules and orders governing attendance by failing to have operational cameras. 

In light of the growing number of local rules, we urge all counsel, insurance professionals, risk managers, and those who frequently attend mediation to have operational audio and video capabilities if appearing by Zoom or through some other platform. “Appearance” at mediation necessarily means being both seen and heard. Participants may rightfully expect everyone appear at mediation in the same way, and mediators are duty bound to ensure this occurs even in the absence of a court order. In Florida Rule 10.400 provides that a mediator is responsible for “safeguarding the mediation process.” The rule further provides “the benefits of the process are best achieved if the mediation is conducted in an informed, balanced and timely fashion.” A balanced process requires all parties and counsel to participate in substantially the same way. If you can see me or the other side but they or I cannot see you, the process is not balanced. The invisible participant has an informational advantage because a lot of communication is non-verbal. Conversely, if you are getting upset, annoyed or distracted, the absence of video means I may not appreciate your present state – then you are at a disadvantage. With a camera, I may pick up on a cue that alerts me to a looming problem or threat to the process. The cost of a webcam is minimal. 

Since going virtual, I use a moderately priced Microsoft Surface 8 with a built-in camera and microphone which produces excellent results on the Zoom platform. Virtual backgrounds and decent lighting should be standard. I recommend this inexpensive but excellent rechargeable variable lumens tripod mounted desk light. Good audio and video helps the process and makes it easier for the mediator to champion your cause in the other room. For more on the value of proper appearance via Zoom see my article here.