Until we meet again
Let’s stay engaged
Until then
Let’s stay engaged– The Tragically Hip, “Let’s Stay Engaged”
Mediations for employment law disputes have continued to grow in popularity in the past decade. With the advent of the automatic referral program in the SDNY and increasing use of mediation in EDNY cases, a large swath of employment matters are subject to mediation in federal court, along with mediation options at the EEOC and in state court. For example, the SDNY reports that in 2021, 1,483 cases were referred to the SDNY’s mediation program, 44% of which were FLSA, employment and § 1983 claims. In 2022, 1,550 cases were referred to the SDNY’s mediation program, 36% of which were FLSA, employment, and § 1983 claims.1
Similarly, in the EDNY in 2021, FLSA cases constituted 46% of the mediation referrals (424 cases overall), with employment discrimination cases being the second most common type of mediation referral (83 cases overall). 2
Since the proliferation and expansion of remote mediation during the COVID pandemic, the flexibility and ease of scheduling has led to even greater popularity for mediation referrals. But even in a remote setting, mediation can be a slog for the parties. As the mediation drags on, it is natural for parties to start to tune out.
Remote mediation offers unique obstacles to keeping the parties engaged, since the nature of the remote process limits party participation. Left unaddressed, this can lead to a nonproductive mediation session. However, counsel and mediators can take a series of practical steps to overcome these barriers and ensure party engagement in their mediations.
Remote mediations began in earnest during the COVID-19 pandemic when law offices were closed, so most parties would appear from their homes. However, this frequently remains the case post-pandemic, and, while convenient for the parties, there are negatives to consider.
When appearing from home, a party may dial in to the mediation and not appear on camera. If the party cannot be seen, both the mediator and the attorney will be unable to detect any visual cues or respond to body language. The party may also be distracted and not focus on the mediation.
Separately, even when the party appears from their attorney’s office, some lawyers keep their client “off-camera.” Whether on purpose or not, keeping the party out of the mediator’s view can similarly limit party interaction and engagement in the mediation.
Not seeing the party can impede the mediator from developing a relationship with the party during the mediation. The absence of mediator-party rapport can complicate the mediator’s ability to have a difficult conversation with the party during the mediation, either regarding the viability of the case, or whether they should strongly consider a settlement offer. Visual cues are important during a mediation, and establishing credibility with the party is more difficult for the mediator if he or she is not able to see the party’s face. Further, if a party is not appearing on video, there is an increased risk that the party is not sufficiently engaged in the process.
As a result, mediators and attorneys should insist the party appear on camera during the mediation, and preferably from their attorneys’ office for the duration of the mediation.
Employment cases often feature non-English speaking plaintiffs, which can add another barrier to party engagement that can be exacerbated during a remote mediation. Often in a Zoom mediation, the attorney may appear in one room, with the plaintiff and translator in another room. This separates the plaintiff from the proceedings because it leads to their attorney doing all the talking with minimal client engagement. As the mediation progresses, the party is more likely to tune out. When possible, having the party appear from the same room as their attorney and translator can help ensure the client is a more active participant throughout the mediation and not just a passive bystander.
There is a tendency by some parties to take remote mediation less seriously than in-person sessions. To some extent, par- ties have less skin in the game when they do not have to dress formally and travel to a courthouse or attorney’s office for a mediation session. Parties may also view it as easier to leave a mediation session at any time when they can simply press a button to close their remote connection from the comfort of their homes.
As a result, it is important for attorneys to prepare their clients for remote mediation and to highlight the differences from an in-person session, including how to use the technology ahead of time. Additionally, attorneys should stress that a remote mediation is no less formal than an in-person session, even if their party is appearing from home.
Remote mediation has quickly become the preferred option for parties since 2020 and is not going away. As a result, it is imperative that mediators and counsel work together to ensure that remote mediations are as productive as possible by keeping the parties engaged throughout the process.
Darren Rumack is an attorney at the Klein and Cardali Law Group PLLC, which represents employees and employers in all areas of employment discrimination, wage and hour law, and workers’ compensation. He is an active employment law mediator through Rumack Dispute Resolution, and in the SONY, EDNY, and New York State Supreme Court mediation panels.
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