BBDRS RULES FOR REMOTE MEDIATION
1. Mediation is a confidential process. Only parties, attorneys of record, and persons specifically authorized by the Mediator in advance may attend. Attendance in the context of a Remote Mediation includes physical presence in a room or within the hearing of the electronic device from which the mediation is accessed. At the outset of mediation, each party shall identify any other person or persons who are in the room or within hearing of the room where the remote participant is located. Unless agreed by all counsel of record and approved by the Mediator, no non-party may participate or be present during the mediation. Anyone else may be asked to leave until mediation is complete.
2. Recording, whether by dicta-phone, recording machine, telephone, website, app, or any other digital or electronic means of capturing video or audio, downloading the livestream, or making a record of the proceedings, is strictly prohibited. This prohibition includes accessing the “record” feature of Zoom. As the administrator and host of the electronic meeting, the Mediator will engage the “block recording” feature of Zoom for the meeting, and will get an immediate message if a participant attempts to record the session. Such violation may result in a report to the Court that the party did not mediate “in good faith.”
3. All participants shall remain fully available to participate in the ongoing mediation once it is underway. The remote mediation process will not be a productive use of anyone’s time if someone cannot be reached as needed. I encourage all participants to set aside the scheduled mediation block of time as his/her exclusive focus, just as you would in an “in-person” setting. Once you join the meeting you will remain connected until the mediation process is complete. If you or a client experiences technical difficulties and loses connection to the room during the day, you shall rejoin immediately or as soon as possible, without delay. You are not permitted to log in and out of the meeting at your convenience. Remember to have necessary equipment to charge your device, and be in a location with a strong data signal.
4. If you anticipate using documents which you will refer to during the mediation, you must provide me a digital or fax copy of each such document at least 24 hours prior to the time set for mediation to convene.
5. I must receive all payments from litigants before the opening session commences, unless we have made prior arrangements for a different payment method.
6. All litigants and attorneys shall destroy all copies of draft documents we exchange during the day, to avoid confusion about the terms of a final MSA.
PROCEDURES FOR REMOTE MEDIATION
1. Download the Zoom client (meaning the program or app) on your smart phone or computer. Set up your account using your email address, and your real name. If you are using a desktop computer, make sure that you have internal (or purchase and install an external) video capabilities, and test the camera.
2. If you and your client are going to be in separate locations, your client will also need to download Zoom, and will need to provide me with his/her email address. Make sure you both test and practice with the program, if you are not already familiar with it. If you and your client intend to communicate using the Zoom private “Chat” feature, please be sure you practice that procedure beforehand, so that you do not risk having a privileged communication revealed to other parties.
3. I will send you a meeting notice and invitation. Be sure to use the same device (computer, tablet or phone) that you have used successfully in a test when we start mediation. You will click on the link I provide in the invitation, and, enter the meeting code, if asked for it. You will enter the “waiting room” until I bring you into the joint session. When you enter, select “Join by Computer Audio,” even if you are connecting via smart phone. Be sure that you have identified yourself on the Zoom window by name and title (such as “John Smith, attorney for petitioner), and not by device or nickname.
4. As Mediator, it is my responsibility to ensure the privacy and confidentiality of the mediation process. One way to fulfill that obligation is to create “breakout rooms” for litigants and their attorneys. I will end the initial joint caucuses, and move everyone into their breakout rooms, and move between those rooms during the day.
To understand this process from my perspective, you can go to this link in YouTube: https://www.youtube.com/watch?v=BAzipspYhrg. The process protects confidentiality, and allows me to move quickly through the conversations.
5. Once an agreement is reached, I will prepare the draft Mediated Settlement Agreement and email it to both attorneys by pdf, or share it on the Zoom screen. We then use the same meeting process to receive and discuss edits to the proposed MSA from the attorneys.
6. When the document is approved by both sides as to both form and content, I will email the revised “final form” MSA to all participants for signature. The mediation will not end until the document is signed. There are a couple of ways to handle signing off on the MSA:
A. If Docusign is available to the participants, the final form MSA will be signed by all parties. Each participant will have ready access to the fully executed and approved MSA.
B. If not, each litigant will sign the MSA and initial all pages, and will scan/email (or fax) the signed document to my email address. The attorney for each party will sign only the final signature page. I will then assemble the duplicate original pages from all parties and transmit copies to everyone so that all participants have a fully signed copy for their records. In this case, you are required to have access to a scanner and printer throughout the mediation process.
NOTE: ANY CHANGES TO PARTICIPATION AS DESCRIBED ABOVE MUST BE APPROVED BY THE MEDIATOR AT LEAST ONE WEEK IN ADVANCE OF THE MEDIATION.
Big Bend Dispute Resolution Services