Online mediation is an effective method for resolving disputes which not only crafts positive solutions for both parties but limits the costs of litigation. A mediation is a facilitated conversation with a neutral party – myself – who helps the parties re-open the lines of communications, discuss their grievances, and work together to craft a solution.
Because the seeds of the dispute lie with the parties, so does the solution. I can guide the parties to make that solution possible, no matter how complex the underlying issues.
Online mediations are subject to the same rules of confidentiality as an in-person mediation. Section 154.053 gives us the following two guidelines:
(b) Unless expressly authorized by the disclosing party, the impartial third party may not disclose to
either party information given in confidence by the other and shall at all times maintain
confidentiality with respect to communications relating to the subject matter of the dispute.
(c) Unless the parties agree otherwise, all matters, including the conduct and demeanor of the
parties and their counsel during the settlement process, are confidential and may never be disclosed
to anyone, including the appointing court
Concerns are sometimes raised that unlike an in-person mediation, it is hard to establish and control who is present in each room, including third-parties. This is a valid concern and one that
Included in the original scheduling contract is a requirement to list everyone who will be present during a mediation, including support staff and spouses. The presence of anyone other than the parties and their counsel must be by agreement by all parties, with the mediator having final say.
At the beginning of the mediation, a roll call will be held as well as asking each attendee to confirm they are the only people present. This will be periodically checked during the mediation by the mediator.
Materials shared during a mediation are confidential by both agreement of the parties and by statute.
Sec. 154.073. CONFIDENTIALITY OF CERTAIN RECORDS AND COMMUNICATIONS. (a) Except as
provided by Subsections (c), (d), (e), and (f), a communication relating to the subject matter of any
civil or criminal dispute made by a participant in an alternative dispute resolution procedure,
whether before or after the institution of formal judicial proceedings, is confidential, is not subject
to disclosure, and may not be used as evidence against the participant in any judicial or
Online mediations can be done through teleconferences and or videoconferencing or a mix of both. The choices depend on both the capacities of the parties and what is the best option for the case.
Some organizations, such as banks or hospitals, may not allow the use of third party software such as Zoom. For these scenarios, the mediation will be using teleconference and emails. For others, Zoom and UberConference are great options.
Regardless of what set of technologies are being used, the mediator will schedule time ahead of the mediation to walk all of the parties and their counsel through the technology. This will allow time for answering questions and working out any kinks.
There are several approaches to documenting progress, including a shared document, a “running” MSA, and telephonic discussions as to progress. Which approach will work best is dependent on the technologies available and the parties’ comfort level.
Recording Not Allowed:
No recording of any mediation is permitted either online or in-person.
The mediator will mark all emails confidential pertaining to the mediation. Even those not marked so which occur during the mediation fall under the statutes discussed above.
Electronic mediation actually tends to be much quicker. Subjectively it appears slower because of the distance and waiting for “the phone to ring.” However, there is a strong sense of urgency during the mediation period that tends to create more efficient responses.
Depending on the severity, the mediation will either be paused or move to just emails until the problem can be resolved.
But what about the Donuts, Cheese, and Charcuterie:
And yes, I plan on having snacks delivered if possible!