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| Mitchell Rose |
By mid-March, mediators and lawyers accepted that their scheduled mediations would need to adjourn — possibly indefinitely — or proceed in a manner that doesn’t jeopardize the health of participants yet is as effective as meeting in person. Online dispute resolution (ODR), including by way of Zoom, allows all participants to see and hear one another from remote locations, and to virtually caucus in private.
ODR has been around for years, but it took the recent COVID-19 crisis to make it commonplace for resolving civil disputes in Ontario — especially as the civil justice system ground to a halt. As of March 16, small claims court sittings were suspended. Ontario Superior Court operations were then suspended as of March 17 until further notice except for hearings for urgent matters.
In a recent Notice to the Profession, Ontario Superior Court Chief Justice Geoffrey Morawetz called “upon the cooperation of counsel and parties to engage in every effort to resolve matters.”
As a result of these developments, I, and other mediators, quickly learned to mediate using Zoom, or we brushed up on their existing online mediation skills. I conducted a few Zoom mediations of employment law matters over the last two weeks, and I have further Zoom mediations of various civil disputes scheduled for the coming months. Many of my mediator and lawyer colleagues are in the same “virtual boat.” As well, our feedback from clients has been overwhelmingly positive.
For those counsel who are considering mediations by Zoom during COVID-19 to avoid cancellations, and to turn what would be litigation down time into alive time, here are some tips:
- You do not need a Zoom account to participate, but your mediator needs to subscribe to a paid version of Zoom called Pro, or higher. This allows for multiple participants, lengthy meetings and the ability to create private breakout rooms for caucusing.
- Zoom is not the only ODR platform available for mediations, but it is the most popular one in North America, and it has the benefit of name recognition or prior familiarity.
- Mediation agreements should mention that the parties consented to the mediation proceeding online due to public health concerns related to COVID-19.
- You need to have an operational webcam and speakers, and a stable, private Internet connection. Public networks should not be used for Zoom mediations.
- Ensure that the physical rooms (as opposed to the Zoom virtual rooms your mediator will create online) in which you in which your client are situated are well lit and quiet. Doors should be shut for privacy.
- For the purposes of confidentiality, a person who is not contractually bound by the confidentiality provisions contained in the mediation agreement should not be present in any of the physical rooms of any mediation participants.
- Your mediator should disable the Zoom recording feature. You should also warn your client against electronically recording the mediation using another means.
- If the documents like Minutes of Settlement and Releases will not be executed by way of electronic signature, ensure that you and your client have access to e-mail and a printer/scanner during the mediation.
- Ask the mediator you have hired, or you are considering hiring, to conduct a virtual Zoom tour for you so that you can become comfortable with the platform prior to committing or the actual mediation date.
- Think outside the box: Consider starting earlier than the ever popular 10 a.m. or 2 p.m. given that most participants are working from home anyway. As well, this is the perfect time to start mediating small claims court cases — especially since the jurisdiction of that court has increased to $35,000 in January of this year.
- Expect technical issues and ensure there is a workaround. Some participants may have video or sound problems or connectivity issues. Usually, these are quickly resolved, but make sure you have a backup plan such as continuing by way of a telephone call.
- Looking for a professional who conducts mediations online? Have a look at this directory of the ADR Institute of Ontario.
Finally, while none of us know how long the current crisis will last, ODR, whether by way of Zoom or other platforms, is probably here to stay. While I don’t believe in-person mediations will disappear, expect that mediations held online, in whole or in part, will be the new normal in a post-COVID-19 world.
Mitchell Rose is a chartered mediator and settlement counsel with Rose Dispute Resolution/Mitchell Rose Law in Toronto. He can be reached at mediation@mitchellrose.ca.
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