You may have heard the abbreviation RTFM. As soon as everyday consumers started using computers, telephone customer support staff had to field daily questions about the most basic functions. Perhaps the most infamous is about the user who insisted that a floppy disk drive (remember those?) was a cup-holder. What the tech people wanted to yell was, “READ THE F-ING MANUAL!”
Read the Mediation Instructions
I send instructions to participants in every one of my mediations. Over time, these instructions have gotten so specific that they even include directions on what topics to include in the mediation brief.
For better or worse, I am no longer disheartened when it is painfully obvious parties have paid no attention to the instructions. We simply carry on.
Instructions for Video Mediations
Shelter-in-Place orders have drastically increased the use of video platforms for remote mediation. It’s really important to prepare for video mediation by READING THE INSTRUCTIONS. These include information about:
- How to sign in
- Acceptable remote locations
- WiFi requirements
- Device requirements
- What happens if a computer goes down
Unlike with in-person mediations, failure to read video mediation instructions can prevent the mediation from going forward.
Courts may be closed, but the disputes go on. You can get those disputes resolved during a shutdown with video mediation.
Unquestionably, the COVID-19 pandemic is hurting a variety of businesses. As soon as the extent of financial loss started to become obvious, insurers started seeing lawsuits.
Does the lockdown trigger business interruption insurance? What about pollution coverage? Special event coverage? Does actual notice of circumstance bring later claims within a claims-made policy period? Have workers sickened by the virus sustained an industrial injury? Can you collect on your completion bond? It could take years for the law to become close to settled on questions like these. Unfortunately, many companies will not be able to survive the litigation process.Mediation can provide a quick resolution. Mediation is an appropriate choice when:
• There is a close question
• Parties wish to avoid the risk of creating a legal precedent
•The economics favor resolution for a reasonable amount now as opposed to an extreme result later
Let’s talk now about the best way for you to bypass the litigation process.
Think about this. Your negotiations aren’t leading to resolution because of the absence of a filter. A big part of what a mediator does is filter messages between disputing parties.
Self-Filters Don’t Lead to Resolution
Negotiators shape their message to achieve their goal. They might threaten. They might withhold critical information. Negotiators seldom admit the flaws in their position; they’ve filtered those out to make their case look as strong as possible.
In mediation, parties have the opportunity to let their guard down. One of the most powerful features of mediation is caucusing. In caucus, only one side meets with the mediator. By statute, everything that is said is confidential. The mediator cannot disclose anything unless you authorize that disclosure. She cannot be subpoenaed.
Confidentiality promotes candor. Parties can stop filtering their message and discuss the good and bad points of the case with the mediator. Here’s your chance to discuss the case with a professional neutral who can help parties identify the issues and resolve them.
Mediating parties make demands and offers, and the mediator conveys them to the opponent. Part of this process often includes the mediator reframing the message to filter out animosity or extraneous issues. The mediator is using her own filters to enhance the likelihood of settlement. This focuses the parties’ attention on what is important for settling the case.
Even in caucus, some attorneys will grandstand in an attempt to assure the client of their support, no matter how unreasonable the client’s position. An experienced mediator understands the dynamic and how to use it to resolve the case.
Maybe you think your opponent is the biggest jerk in the world. In mediation, the mediator can filter out that attitude to get your case settled.
Because courts are closed, litigating parties should make an extra effort to resolve disputes through negotiation. However, when they are unable to do so, agreeing to mediate is the best alternative. Issues subject to mediation can include conflicts usually resolved by motion, discovery disputes or entire cases. You can contact your mediator of choice by phone or text at 310/889-8165 or by email. She will take it from there.
Two mediation options are available during the shutdown.
Mediation by Video
Your mediator can conduct a mediation while everyone remains at home through several applications, including Free Conference Call, Zoom, or Legaler. This can happen quickly– as soon as parties agree on a time and electronically send the mediator their mediation statements so she knows the basic outlines of the dispute.
Scheduling an In-Person Mediation
If parties insist on an in-person mediation, the time to schedule that is now.
Once courts and mediation venues re-open, scheduling will be a mad dash to secure an available time. Cases already on the court’s calendar for a future date have first priority, pushing litigants with disputes cresting now further back.
In contrast, cases with a date already on the mediator’s calendar will get first chance for any other date if circumstances allow an earlier date or must be further delayed.
You may be feeling frustrated as you see the conflicts mounting in your email inbox. There is a solution available right now: mediation.