For decades, mediation meant traveling to a conference room to view bullet points on a whiteboard, attend breakouts down the hall, and listen to a mediator shuttling between rooms. The mediator could gauge the atmosphere in each room through the personalities and emotions of the participants, reading the temperature, and applying pressure points to advocate for a deal. Online meeting platforms, such as Zoom and Teams, expedited through the remote world imposed during the COVID-19 pandemic, upended that model and made online mediation not only possible, but routine.
Why Online Mediations Persist
The number of class actions filed in state and federal courts nationwide continue to climb. Complex, multiparty, and class action cases are particularly suited to mediation and often involve participants spread across jurisdictions, carriers with varying coverage, and reliance on corporate approvals. Virtual platforms make it feasible to convene decision-makers and online sessions can be assembled faster, continued across days, and extended late without worrying about building access or flights. For lawyers and insurers consistently multi-tasking and working on numerous ongoing matters at any given time, those efficiencies matter.
Lawyers, adjusters, and mediators, not traditionally known for being first in line to embrace technological advancements, now know how to use breakout rooms, screen sharing, and document collaboration. The technology has improved and institutions have built protocols around confidentiality, caucus management, and document execution. Online platforms that presented novel experiences for litigators just a few years ago are now common.
The Push for In-Person Sessions
Many practitioners are advocating for more in‑person mediations, particularly for higher-stakes matters. Screentime presence omits the human element and remote participation can reduce engagement, may reduce accountability and real-time decision-making, and can facilitate posturing or logging (formerly known as “walking”) away.
These views are valid. Some disputes will benefit from an in‑person environment. But most matters can be resolved online if the participating attorneys plan for the medium rather than hope to replicate an in‑person experience on a screen.
Planning for Success Online
Online mediation better suits the prepared. There are practices that consistently increase the likelihood of a deal, or at least the measurable progress toward one.
Align your side before the session. Attorneys should conduct a pre‑mediation strategy meeting to convene client representatives and insurer representatives, clarify objectives, anticipate settlement ranges and structures, and consider non‑monetary terms, as well as assess the deal-advocacy role of the mediator. Participants can confer in advance on authority (including who is paying what), the availability of non-participating decision-makers, and potential next steps if more authority is needed.
Narrow the issues with opposing counsel. Counsel also should prepare for a pre-mediation targeted information exchange. Before the session, provide—with appropriate confidentiality confirmations as part of the mediation process—the data needed to structure a potential resolution, such as exposure models, damages back‑up, class size, coverage availability, or dispositive evidence.
In class actions, exchange fra-
meworks for class scope and claims made versus common fund structures. Counsel also should discuss with opposing counsel whether to exchange mediation statements, hold a brief opening joint session, or begin in caucus. As part of that process, attorneys should identify discrete material issues that can be raised in advance with opposing counsel or that the mediator can help address early. Examples may include the class definition, claims relief, equitable relief parameters, or release language.
Prepare the mediator. Attorneys should plan for a pre‑mediation call with the mediator to help set mediation expectations. During the call, counsel can share existing candid risk assessments and unique settlement dynamics, including insurance issues and participant personalities, and any landmines. They could recommend how the mediator might be more effective, such as acting as an agent of reality or an evaluator of positions and risks, and plan to present a mediator’s proposal if an impasse looms. Counsel also should provide mediators with concise mediation statements tailored for online digestion. Pithy summaries rather than lengthy legal briefs will best inform a mediator. In certain cases, consider a confidential submission to equip the mediator for reality testing.
Engineer the online logistics. Counsel should ask each of their participants to test the connectivity, platform, camera, microphone, and virtual backgrounds on their devices. Have a backup plan, such as dial‑in numbers, ready and share a contact for quick troubleshooting. Attorneys should also instruct their participants to be cognizant throughout the mediation session of who is physically present in the online room. Mistaken placements of opposing counsel or parties are commonplace in online mediation. Counsel also should remind participants that mediation comes with rules against recording and further caution their participants to be aware of their surroundings and camera and mute settings and use. Participants should be careful when engaging in personal or side conversations within microphone range, and confirm, not assume, whether their camera and microphones are active.
In advance of the mediation, counsel should build expectations for their participants and enforce them during the mediation with planned breaks and meals. Know in advance of important calls or meetings that participants need to attend during the mediation day. Ask participants when possible to clear competing meetings, manage screen fatigue, and accept/understand the often tedious, lengthy mediation process.
Use the medium to your advantage. Embracing the use of virtual breakout rooms can enable shorter cycles between demands and offers. When potentially beneficial, counsel can meet in a separate breakout room with key opposing counsel, and use working relationships with opposing counsel to attempt to bridge gaps and build momentum toward a deal.
Attorneys should consider replacing the unavailable whiteboard with shared documents, digital whiteboards, or model spreadsheets or term sheets. Use screen-sharing to walk through resolution models, allocation spreadsheets, or class metrics.
Given the absence of physical presence, counsel should check in on their participants. Depending on who is in their breakout room, counsel may want to use one-on-one calls with certain participants during a time when their caucus room is muted and off-camera to discuss issues, answer questions, and get feedback. At the outset of the first breakout session with the mediator, for example, counsel might want to speak less and invite principals to speak more, especially when explanations and personal or business concerns are looming. That effort might bear fruit in softening resistance toward reaching a deal.
Document early and execute cleanly. As soon as material terms are within reach, counsel should shift or delegate efforts to draft and spell out a shared document such as a term sheet to nail down all essential settlement terms while everyone is still online. Be sure to document if corporate or other approvals are still necessary to consummate a settlement, and build in a set timeline to leave proposed settlement terms open for formal acceptance.
Anticipate and mitigate common online limitations. Some matters warrant a physical room. High-stakes cases, mediations requiring extended joint interaction among principals, or negotiations where the mediator can better employ pressure tactics—including as to counsel’s own participants—may merit an in‑person session. Counsel also can consider hybrid structures such as an in‑person day for key counsel, principals, and the mediator, while insurers, parties, or experts join virtually; or an online first session to attempt to make progress, followed by an in‑person meeting to attempt to close a deal that does not appear conducive to online resolution.
The Takeaway
Online mediation is not a substitute for an in-person session. It is a different medium with different strengths. It expands participation, compresses timelines, and supports complex, multi‑party negotiations—especially in class actions and geographically dispersed disputes. It lacks in-person pressure and the opportunity for hallway diplomacy. Yet, potential downsides to online mediation can be minimized by deliberate preparation, structured engagement, and smart use of technology. Lawyers and mediators who embrace and seek to maximize the benefits of the virtual forum will continue to close cases efficiently and well.
