Australia: COVID-19: Top tips for mediation via Zoom

Judges, barristers, lawyers and parties to litigation have had to quickly adapt to the increased use of telephone, Zoom, Skype and other virtual platforms to progress matters both in and out of Court.

While social distancing restrictions ease and people mull the prospect of a gradual return to the office, the widespread use of these technologies may be here to stay.

In particular, we expect that lawyers and parties are keen to continue using virtual platforms to conduct shorter conference and mediations, rather than requiring various attendees to meet in person. Similarly, judges may be more willing to accept telephone or video appearances for shorter applications and review hearings, rather than requiring lawyers and their clients to appear in person.

With that in mind, we have prepared our top tips for clients participating in virtual conferences and mediations, to ensure that the process is as smooth as possible.

1. Practice makes perfect

We recommend a practice run with the mediator, your lawyer and barrister (if attending). While barristers and mediators are quickly coming up to speed with the various videoconferencing platforms used by the Courts, they may not be familiar with scheduling and hosting calls, using breakout rooms and managing parties. You will also want to ensure that you are comfortable using Zoom and are familiar with its functions. If your lawyers expect that a settlement agreement needs to be executed on the day of the mediation, ask them about the execution requirements. Will you be required to sign a settlement agreement on the day? If so, are you able to print, execute and scan back a copy of the agreement from home?

2. Can you hear me?

Consider if you need a headset or if your computer’s speakers and microphone are sufficient. Sound quality can differ between using Zoom on your mobile device and on a computer, so it is worthwhile checking you can hear (and be heard) prior to the mediation.

3. How do I look?

If you don’t have a separate home office and don’t want to broadcast your lounge room to the world, consider using a virtual background. Law firms and other organisations are creating virtual backgrounds for use in professional contexts, that block out your personal background. While not perfect, these backgrounds can work well to block out unwanted backdrops and ensure a professional appearance.

4. Are you alone?

Unless otherwise agreed, virtual mediations and settlement conferences continue to be subject to the usual confidentiality obligations. This means that anyone who is not party to the mediation agreement (such as family members or housemates) should not be present in the mediation, even if they are out of view of the other parties. Similarly, if you are appearing in Court virtually, witnesses should be in separate locations and not present while another witness is giving evidence.

5. If you need me, call me

Consider how you want to communicate with your lawyer, barrister, and any aligned parties outside of the main mediation. This could be via email, messenger or other means. You should agree on the approach with your legal team before the mediation. If you intend to message, do all parties have the agreed messaging platform, and each other’s numbers? These issues should be addressed prior to the mediation to ensure that you don’t miss any important communications.

6. Show me the [document]!

If you expect to have to show a party a document electronically by sharing your screen, consider having all relevant documents open and ready to go, and ensure that anything you don’t want to share isn’t inadvertently open when you start sharing. The ability to easily share and review documents is also a benefit of attending the mediation via a computer or laptop, rather than mobile device.

These updates are applicable to Australian law only and are generic in nature. If you have any specific legal concerns relating to the impact of COVID-19 on your people or your business, please reach out to our pro bono team (ausprobono@nortonrosefulbright.com) and we will consider your pro bono legal request. If we aren’t able to help you, we will try to find someone else who can. This update is current as at 21 May 2020.