By Heather McFarlane
Online Mediation in Personal Injury Cases
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ediation 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-
