JAMS ADR Blog by Chris Poole
My goal has always been to provide each and every mediation participant with the most satisfying experience possible. In virtual proceedings, the ability to convey settlement communications as if the litigants and I were in the same room is critical. To this end, my mandate is to professionally, ethically, personally and confidentially settle every matter of commercial litigation for which I am privileged to be called mediator.
Whether conducting a virtual mediation with many parties or just two parties, the mediator’s number-one job is to settle cases. In a virtual setting, there are many options for both case consensus and binding documentation. Virtual platforms allow us to confirm settlement terms while concurrently orchestrating the execution of binding agreements, just as we would in in-person mediations.
When settlement is achieved in a virtual setting, the mediator should ensure that binding settlement and release terms have been finalized. The mediator can use email to confirm the terms of the settlement reached during the virtual session. However, for the resolution to be binding, the terms must either be agreed upon in writing or placed on the record before the court. Because we do not currently have the benefit of court supervision, it is incumbent upon the mediator and the parties to formalize the settlement through a signed settlement and release agreement. So how can parties exchange, negotiate and execute a binding agreement in a virtual mediation?
Proposed agreements and revisions to them can be emailed back and forth. Webex and other applications allow parties to share documents and make edits in real time. If additional time is needed to complete the formal settlement and release agreement, the parties can sign either a term sheet or a memorandum of understanding.
If the case does not settle by the end of the day, the mediator should continue to pursue resolution. For both in-person and virtual proceedings, the mediator can use the same follow-up tools and strategies.
Whether through blind proposals or high/low brackets, the mediator can follow up with all counsel via email, cell phone or even a private virtual session to present paths to resolution.
Rather than viewing virtual mediation as a replacement for in-person mediation, let it serve as another vehicle to achieve resolution and a platform to create and distribute the necessary settlement documentation.