Increase in Virtual Mediations Due to COVID-19


By George C. Zumbano

With the courts in complete shutdown, except for emergency matters, many parties involved in ongoing litigation cases or disputes are reaching out to proceed with mediations.  There has been an uptick in requests for mediations in new matters, which in turn has required mediators to create plans for virtual mediations.  Mediators, like litigants in the context of depositions, are quickly adapting to virtual mediation for activities that normally and customarily would be done in person.

In pre-COVID-19 times it was customary for parties, counsel, experts and insurance representatives to meet in person in a mediator’s office suite, or at some other neutral location.  Physical presence for mediation is advantageous because it allows the parties and their counsel to come together at the same with one objective in mind – resolution of the case. While the mediator and the parties spend time with each other collectively, or in separate caucuses, the parties are left to talk about their case when they are not with the mediator during significant down time.

Utilizing a construction dispute matter as an example, the following is an outline of how a virtual mediation would be different now.

The mediation process usually begins with an initial call with the mediator and counsel for the parties to discuss the nature of the dispute, to run conflicts with the mediator, select mediation dates and set up pre-mediation disclosure timelines.  This is a great opportunity to test-run video conferencing platforms and other connectivity issues.  Levels of sophistication and experience may differ for counsel during this call and it is a good time to flag technology issues that may need to be addressed before the mediation itself occurs.  Many platforms are in use.  One of the more popular ones recently is Zoom.  There is also WebEx, GoToMeeting, and Google Meet.  A testing of connections and internet speed to ensure good connectivity is important and easily addressed in the early calls before the mediation session takes place.  It also a good time for the mediator to confirm the number of parties and the need to set up virtual breakout rooms for each party.

Next, there is the period of time for pre-mediation filings. Often, these are memoranda filed by counsel for purposes of the mediation only.  They are protected as confidential mediation disclosures.  Some mediators strongly encourage such filings to be shared by all parties while others invite “mediator only” confidential submissions.  There is no change required in the process in light of virtual mediations.

Given the usual number of multiple parties and complex issues in a construction case, it is common to have early separate confidential calls between the mediator and each of the parties.  Often, this involves a party’s use of expert reports and other evidence to educate the mediator on the issues involved.  Normally such calls last an hour or so. They generally occur a few days before the mediation, but after receipt of pre-mediation statements. This is the second opportunity to run tests on video capabilities.

Customarily, pre-COVID-19, the parties would travel to a neutral spot, often the offices of the mediator.  In construction cases where there are multiple parties, however, more space is usually required.  In the last matter, before virtual mediations, we used multiple offices available to us in our Bar Association building.

Virtual mediation can result in substantial cost savings.  In significant construction cases, often there is more than one attorney working on the matter for each party.  While it may be too costly to bring two or three attorneys for a full-day mediation, having those attorneys available virtually minimizes the cost and contributes to the perspective needed by the parties.  It clearly eliminates travel time costs.

The initial start of a mediation is usually a joint session that is easily accomplished in a virtual setting using one of audio video platforms listed above.  Frequently, if not always, after the joint session, the mediator shows each party to their respective caucus rooms, while the mediator goes between the parties to assist in the negotiation process.  In a virtual mediation there are virtual “breakout rooms”.  These are virtual rooms where access is limited to select participants.  No other party has the authority or ability to access the virtual breakout room unless the host, usually the mediator, provides access.  In addition, with virtual meetings, the participants, during down time, can work on other matters from their home offices.  This is another way to improve efficiencies and reduce mediation costs.

The demand for virtual mediations is on the rise as we remain confined with limited in-person access to each other and restricted physical access to our courthouses.  Virtual mediations are not difficult, can be just as effective as in-person mediations, and can result in significant cost savings and efficiencies.

For further information on virtual mediations or other matters, contact Lamb McErlane PC. 610-430-8000.


George C. Zumbano focuses his practice representing businesses, individuals, and institutions in business and litigation matters. George is frequently selected to mediate and arbitrate matters. He practices in the fields of Commercial and Business Litigation, Personal Injury and Malpractice Litigation, Employment and Personnel Matters, Business Law, Estates and Trusts Litigation, Education Law, Estate Planning & Administration. George is available at or 610-701-4435.

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