Our firm’s practice expands across most of Middle Tennessee and the counties where we practice have each adapted to the COVID-19 pandemic uniquely in their own way. Most jurisdictions have utilized virtual motion dockets and embraced e-filing procedures in order to combat the coronavirus, and both the courts and mediators will gladly accommodate requests for remote proceedings. As attorneys, the most valuable resource we have is our time, and the advent of remote practice has truly accentuated the limitations and copious amount of time which was wasted by in-person proceedings. Hopefully, the days of having to drive 90 minutes for a rudimentary 5-minute motion hearing are over. Virtual motion dockets have also finally made it possible to appear in multiple jurisdictions on the same day in Courts having the same weekly motion days/times, which previously forced attorneys to reset motions because of conflicts. Because our experience with remote practice has been resoundingly positive, we have shared some advice and pointers in order to improve your own outlook and approach to virtual hearings and remote mediations.
When the courts first closed back in March and our clients coped with layoffs and furloughs, we focused our efforts on resolving cases through virtual and remote mediation. With most parties already working from home, scheduling has been much easier and remote mediation has also spared our clients from the time and expense of having to travel out of state and across the country. Fortunately, we have also observed that our clients have had a considerably higher success rate from remote mediations where I have found both parties to be more relaxed, amenable, and receptive to the mediation process, simply by allowing them to participate from the comforts and familiarity of their own home. This has allowed our clients to completely avoid the uncomfortable tensions of in-person mediation when tensions escalate, things get chippy, and negotiations end abruptly over the slightest under-handed remark. I have grown to become a big proponent of remote mediations and I will aim to continue utilizing them well after the pandemic has passed. Below are some specific tips and advice for your own remote practice.
The Coronavirus is a bit of a moving target at the moment and each Jurisdiction’s response has varied from court to court. Before scheduling a hearing, refer first to the Clerk’s website for any Orders on their current COVID protocol and procedures. Next, contact the Court’s Secretary or Administrative Assistant and find out what options the Judge has been offering regarding their regular motion dockets, and whether the Court allows remote hearings to be specially set. This may be especially advantageous if you or Opposing Counsel have any scheduling conflicts on the Court’s motion date(s). For example, if the Court normally has a Friday morning motion docket, as their Secretary if a remote hearing can be set on Friday afternoon, at a time that comports with their schedule. Below filing your Motion or Notice of Hearing, consider the following:
- Make sure Opposing Counsel has agreed to have the hearing held remotely.
- Find out specifically what platform the Court uses (Cisco WebEx, Zoom, Google Meet, etc.) and make sure that you and your client are familiar with the software in advance.
- Make sure you specifically include the necessary language in your Notice of Hearing.
- Comply with the Court’s rules regarding submission of evidence and materials in advance (typically Courts will require you to email any exhibits to the Court and Opposing Counsel at least 72 hours in advance)
- Contact Opposing Counsel in advance, and make stipulations regarding exhibits and evidence. This is good practice and it will enable the hearing itself to run more efficiently and far more effectively, which the Judge and their support staff will appreciate immensely.
TIPS FOR REMOTE MEDIATIONS
Nearly all of the Mediators in our practice area have been extremely accommodating and more than willing to allow remote virtual participation. Contact the Mediator’s office in advance to find out whether they conduct remote mediations and what platforms they use. If the Mediator defers to you and whatever preference you might have, then it is important to remember that all platforms were not created equal, at least in my experience. By and far, Zoom tend to be the best and most user-friendly option. If the Mediator isn’t tech savvy themselves, then I typically recommend that each attorney hosts their own Zoom meeting, and I will invite my Client and the Mediator to join our Meeting. At the start of Mediation, my client and I are in a Zoom hearing together, and the Mediator is free to bounce in and out of the two parties’ Meetings. Zoom also allows you to record the proceedings in case there are any discrepancies on the terms of an agreement. By comparison, Cisco WebEx & Jabber aren’t quite as user-friendly; however, they do have a feature that allows the parties to pull up and reference documents. Google Meet takes a distant third to both, but again, these opinions are purely subjective and all of them are constantly improving and implementing new features, and I would encourage you to test each of them in their latest capacity. Additionally, take the following into consideration prior to remote mediation:
- As a courtesy, make sure that Opposing Counsel and your Client agree to remote mediation.
- Find out what platform the Mediator uses and make sure that you and your client have downloaded and are both familiar with the software in advance.
- Ask the mediator in advance what process they use for the remote signing and execution of documents. DocuSign has become increasingly popular, and it allows the mediator to email you and your Client documents to be signed within minutes after mediation has ended. Depending on the parties’ location, the Mediator may also have the parties come to their office in person to execute an agreement. There are other mediators who will send an agreement to the parties’ closes FedEx store, where each party will arrive in person, execute the document in the presence of FedEx’s notary, who will then express ship the signed documents back to the Mediator’s office. There are a myriad of options available, and DocuSign has so far reigned supreme.
ETIQUETTE FOR REMOTE PRACTICE
These are helpful both to you and your client. Consider implementing them yourself and contact your client in advance of any remote hearing in order to fully discuss with your client:
- Download and USE the platform in advance. Both of you need to be familiar with the software and controls, before your proceedings begin.
- Place yourself on MUTE whenever you are not speaking. This is crucial and bears repeating. Your microphone picks up ambient and distracting sounds that diminish every user’s experience. A barking dog or chirping smoke alarm are highly distracting, and by everyone muting themselves when not speaking, you will greatly diminish the static noise and vast improve everyone’s experience.
- Use Computers, laptops, or Tablets rather than a phone. Phone have several restrictions, they need to be charged constantly, and they have to be held, which causes an irregular and frustrating picture for the other participants. Calls and text messages can also disrupt the proceedings. If at all possible, instruct your clients to use desktop/laptop computers or a tablet as the next best option. If a phone is their only option, then make sure their phone is charged and set in a stationary position for the duration of the proceedings.
- Find a quiet and unoccupied space with a strong signal for remote hearings. Avoid common areas where others are likely to traffic or pass by. A Remote bedroom or basement is great as long as they have a strong Wi-Fi or internet signal.
- ALL microwaves have a quiet mode (yes even yours), simply press and hold the one “1” button until it beeps. Your microwave will enter quite mode and vice versa. (Those of you with infants and sleeping babies at home, you are welcome!)
Hopefully, courts will consider making weekly or bi-monthly virtual motion dockets a permanent fixture and a mainstay going forward, and both lawyers and clients should benefit immensely from the advent of remote mediation. Our time as attorneys is incredibly valuable, and our clients will appreciate not having to incur the costs and expense of us having to travel. The COVID-19 pandemic has forced us to work smarter and more efficient, while promoting safety and well-being. The silver lining here may be a new normal for our profession, where litigants are safer and judicial economy is exponentially improved by embracing technological advance. We hope that our own experience has been helpful, and that you and your clients stay safe and are well. We wish you all the best of luck and health and happiness going forward!