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Mediating in the New Era


The Covid pandemic forced businesses of all types to innovate.  We now have curbside service at essentially every retail store; paperless menus at restaurants (and drinks to go); and, we no longer need to be overseas, or across the country from a client or colleague, in order to attend a meeting by video conference.  In the legal profession, the later certainly holds true for depositions and mediations.

Just eighteen months ago, parties, attorneys and representatives would plan their days around scheduled, in-person mediations.  For many, this required making travel arrangements and incurring costs related to travel for attending the mediation.

Everything has changed.

Social distancing recommendations, and concern of contracting Covid, required those who want to mediate successfully to look at conducting mediation a different way.  For the last year or so, video conferencing seems to be the most popular way of attending mediation.  But, I don’t think attending mediations by video conference stops when the dust settles.  I believe mediators must be prepared to continue this method for the foreseeable future.  Attending mediations via video conference saves an extraordinary amount of time and money.  These efficiencies are not going to go away.  If anything, attending mediation by video conference will continue to gain popularity.   This is going to require mediators to be familiar enough with the technology in order to continue to maintain a successful mediation practice.

I am sure most of you reading this have participated in some form of video conferencing.  There are several platform options.  Regardless of the platform, you, as the mediator, when hosting a mediation by video conference, will be expected to understand the technology.  This requires mastery with breakout rooms, chat boards, screen sharing, mute, camera, lighting, sound, asking for help, signing mediation agreements electronically, and on and on (including back up plans when the computer or tablet happens to not be working on the day of the mediation).  As the technology changes, the mediator must be able to keep up and adapt.

I still talk to attorneys who are hesitant to participate in a mediation by video conference.  Generally, the concern will be the lack of familiarity with the process and technology.  In those situations, I recommend offering a “test run” with the attorney.  Be prepared to go through the entire process from entering the mediation meeting, going into separate virtual rooms and signing the mediation settlement agreement electronically.  Not only is this more efficient for the attorneys, but for the clients as well.  The clients’ comfort level may facilitate a successful mediation outcome.

Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.

This blog is made available by Santel | Garner for educational purposes only as well as to provide general information and a general overview of the law, not provide specific legal advice. By using this blog and website, you understand that there is no attorney-client relationship between you and Santel | Garner . This blog and website should not be used as a substitute for competent legal advice from a licensed attorney in your state.