There are many positives to video-conferencing during this whacky world we are now working through. However, there are some precautions that need to be taken. As always, the issue of confidentiality is of utmost importance whether in-person or via videoconference. The last thing you want to see happen is a challenge to a hard fought settlement because of a breach of confidentiality. Here are a few tips that I suggest you consider.
1. Use a Pre-Mediation Confidentiality Agreement: It will underscore the significance of confidentiality even before the mediation begins. If your mediator does not suggest this, I would bring it to their attention. Having your client sign this document will go a long way to address this issue. I am happy to provide you with an example of this agreement. At the bottom of my article, just click on my email address and type the word “yes”. I’ll send you a copy via jpg or pdf.
2. Tighten Up Your Opening Statement: It has been demonstrated that parties to a videoconference often fail to exhibit the same degree of concentration found when in-person. If a party is appearing from a separate location than their attorney, they have a greater inclination to have their minds wander. If they are conferencing from home, they might want to check their emails, pet their dog, confer with friends, who knows? No parties will be overly impressed with an extensive opening. Keep it short and sweet. This applies to all counsel and the mediator as well.
3. Keep Parties Engaged During Caucuses: Provide them with “homework”. For the same reason as number two, parties can easily be distracted. They should be reminded before each caucus of the importance of maintaining confidentiality.
4. Application of Confidentiality in Executed Agreement: At the successful conclusion of your mediation remind your client that confidentiality does not apply to any executed settlement document unless the parties explicitly stipulate that the terms of settlement are to remain confidential. Let your client know whether or not they need to observe confidentiality post-mediation. This is part of paragraph 6 of the form Mediation Confidentiality Agreement that I am happy to send your way.
I wish you all the best of luck and feel free to contact me with any questions or comments.