By: Donald L Swanson
What follows is a script (more or less) of a panel presentation I gave on December 11, 2020, in a webinar sponsored by the American Bar Association. A revised version is published in Businesslawtoday.org by the American Bar Association at this link.
Practicalities for conducting a mediation session by Zoom (or similar platform) include the following.
Practice—then just do it.
Anyone can do it! That’s the moral of this story.
A mediation is scheduled for mid-March of 2020. A week beforehand, having participated in several pandemic-induced Zoom meetings by then, I announce it will be by Zoom, to maintain distance. To my surprise, everyone agrees.
Truth-be-told, this is terrifying. Knowing nothing about managing Zoom technology, and sitting in my basement with a laptop and no tech support, I’m on my own. So . . . my wife, Marilyn, gets on her laptop upstairs, and we practice . . . and practice some more.
Then, attorneys for one party guess that help is needed and offer a practice run—and it is most helpful!
Then, the mediation session arrives—and works like a charm. We start in joint session, then move each party’s team into separate Zoom rooms—there are eleven separate computers logged-in. Then, we all come back into joint session, followed by sending everyone back out to separate Zoom rooms and bouncing back-and-forth between them.
Everyone gives grace and assistance on tech issues. But we make it through, and the case settles!
The moral of the story: if it can work for me, anyone can do it!
Joint Sessions—work particularly well over Zoom.
The new Subchapter V law requires appointment of a trustee and creates a new trustee duty: to “facilitate the development of a consensual plan of reorganization” (11 U.S.C. § 1183(b)(7)).
This new duty creates a mediator-ish role for the trustee. It isn’t an entirely-neutral role because of the trustee’s other duties, such as possibilities of investigating the debtor’s conduct, opposing debtor’s discharge, weighing-in on plan confirmation and asset sale issues, and enforcing payment obligations. But, facilitating a consensual result is certainly on the mediator-ish spectrum of ADR.
A Zoom facilitation meeting is one step in satisfying this duty. Here’s how it works, with confidentiality limited to what Rule 408 provides—normal confidentiality rules for mediation can’t apply because of the trustee’s various duties. [For a discussion of Rule 408 in mediation, see this linked article.] Immediately following the § 341 meeting, the debtor, debtor’s attorney, creditors, creditor attorneys, and Subchapter V trustee get together for a Zoom meeting with this agenda:
- Debtor explains the intended action and terms of a proposed plan;
- Creditors explain their views and suggestions thereon; and
- Discussions occur on how agreements might be reached.
In a facilitation meeting like this, everyone needs to hear what is being discussed. So, a joint session works best—bouncing back and forth among caucused parties would not work here, at all.
These facilitation meetings, in joint session, can be helpful. I remember going into one such meeting thinking, “there is no way to achieve a consensual plan, based on what’s in the schedules.” But, lo and behold, the explanation by Debtor’s counsel, under the first agenda item, presents a perfectly-plausible strategy. And all creditors are immediately on board—they have a lot of questions and are skeptical of debtor’s ability to pull the strategy off, but they are most definitely cheering for the debtor to make it work.
It’s the joint session that makes a facilitation meeting’s three-part agenda successful. And it is the Zoom-created social distance between participants that helps reduce any discomfort that may exist between disputing parties.
Related Processes—demonstrate that Zoom mediation is here to stay.
Depositions and bench trials with warm-body testimony are also happening by Zoom—everywhere. And like mediations and facilitations, the Zoom technology is working well there too. Here are a couple examples.
A deposition occurs with the witness, attorneys, parties and court reporter in far flung locations. There are twenty exhibits, with advance copies delivered to everyone by email.
Then, after the witness is sworn and testimony is moving forward, the attorney taking the deposition pulls up one of the exhibits on the Zoom share screen and uses the cursor to highlight a sentence in the exhibit for discussion. After reviewing pertinent portions of that exhibit, the attorney moves through the exhibits, one by one, in a similar manner.
This works well. And the savings in travel time and costs (whether long distance or local) are significant.
It’s my new favorite way of taking a deposition.
Imagine a judge sitting in a courtroom in one city, attorneys are sitting in their offices in three other locations across the country, and the witness is sitting in an attorney’s office in an entirely different location. Zoom technologies pull them all together for a bench trial—as if they were all together in the same room.
There are some quirks like, (i) dealing with a glitch or two in technology, and (ii) what qualifies as “unavailable” under Rule 804 for hearsay purposes? [For a discussion of Rule 804, see this linked article.]
But the Zoom process works well. And savings in travel time and costs, alone, can be huge.
This is my new favorite way of doing a bench trial.
Zoom has revolutionized our world, in this distancing environment.
Legal processes, including mediation, are the beneficiaries of such change. And what we are finding is this: the change is incredibly positive and is, therefore, here to stay.
As silver linings go, that’s one.
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