How to sabotage a virtual mediation: Another impractical guide for lawyers

Mediator Mitchell Rose offers another satirical look at a partner's advice updated for the Zoom era

Mitchell Rose

SENT:             Sunday, 11:13 PM

TO:                  Very Senior Associate

FROM:            Extremely Distinguished Senior Partner & CEO

RE:                  Your Upcoming Coffee Unlimited v. Dry Keyboards Inc. Zoom Mediation

I’m sure that you are surprised to receive this email. It’s been nearly eight years since I began ignoring you after you failed to take my sage advice at the Oil v. Water mediation while I was golfing. Instead, you did the opposite of what I told you to do. As a result, the case settled. While our client was pleased, I was furious. As you know, I hate settling.

Just in case it wasn’t clear to you: I am the reason you never made partner.

I’ve mellowed with time though, and perhaps I was a little harsh with you. Also, the other partners like you. So, I am going to give you a chance to redeem yourself. I heard that you have a mediation next week for your Dry Keyboards file, and that it’s being held virtually, via Zoom, due to the pandemic (although some people say that virtual mediation is here to stay).

While I have no experience with virtual mediation advocacy, lack of experience has never stopped me from doing anything. So, I am giving you some virtual mediation tips to ensure this case does not settle. May this file drag on, and on for many more years so that one day you can conduct a six-week jury trial — in person, of course.

  1. For the mediation brief, I still stand by my first tip from 2013: Don’t serve a brief. Just bombard the mediator and opposing counsel with lots of documents the day before the mediation. Notice though that I didn’t write “paper” this time around. I’ve learned a few things since you helped our firm to go paperless a few years ago. But the beauty of electronic litigation is that you can serve more irrelevant documents than ever, and at any time of day or night. So bombs away, I say!
  2. Be sure to use a public Wi-Fi connection for the mediation. The firm is finished with paying for everyone’s high speed internet just so they can work from home. Enough already! If you can’t actually sit in a café with free Wi-Fi due to lockdown, then you can at least stand outside of it. This mediation won’t last long anyway.
  3. If you are going to stay home for the mediation because you are paying for your own internet, you should still wear a mask. That way, it will be harder for everyone else to hear you over Zoom. Better still: Wear a mask with a message on it like “see you in court!”, or, more subtly, “your client is a lying thief!”
  4. Alternatively, use a filter. But remember: You are not a cat. There is only one acceptable animal for you: A shark!
  5. If you are indoors, ensure there is a big curtainless window behind you with the sun shining through it. If you are outside, walk quickly in a circle while holding your phone so that the other participants become nauseated and beg you to turn off your video.
  6. If there is a joint (plenary) session, you should “accidentally” mute yourself from time-to-time while you are speaking. When you are done speaking, walk away from your computer. Be sure to leave your camera on so everyone can still see the sun blaring through the window. Then, go work on another file in a different room, and don’t come back for at least 30 minutes. While you are gone, be sure not to answer your phone if it rings, and don’t look at texts or email. No doubt, the mediator and opposing counsel will be frantically trying to reach you.
  7. Don’t bother prepping our client’s representative before the mediation. Just assume that they’ve participated in a Zoom mediation before and that they won’t have any challenges. Also, send our client’s the mediator’s Zoom link only after all of the other participants have logged on so that everyone is waiting for them.
  8. There is no need to inquire about who will be in the same physical space as our client’s representative. Why should it matter if there are non-parties participating, or hanging about, without the other side’s and the mediator’s knowledge, and without having signed the mediation agreement?
  9. The camera of our client’s representative should be turned off throughout the mediation, even if they are fully comfortable with having it on. That way, it will be difficult for the mediator to communicate with them. Alternatively, they can have their camera on, but it should be pointed at the ceiling.
  10. At some point you will inevitably reach an impasse in the negotiations since you won’t actually be negotiating. Hopefully, it will be no longer than the hour-and-a-half mark. That’s when you should suddenly waive goodbye and click the red button!

Good luck and have fun with it! I will be on the golf course again during your mediation, but this time I’ll be in Palm Beach.

PS:

Before hitting “send” on this email, it came to my attention that you are leaving the firm next week to start your own shop. I also understand that our client, Dry Keyboards, wishes to follow you, and you will be handling their virtual meditation on your first day of solo practice. While I am baffled by your (and the client’s) decision, I am sending you my advice above anyway. Even though I now have nothing to gain from dispensing my advice, mentorship has always been important to me. 

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