Paul Stenzel Featured in Wisconsin Journal of Family Law

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Conducting Family Mediation over Video Conferencing

The convergence of technological and cultural changes has led to the increasing use of the internet to resolve disputes including in family law. This article focuses on the option of conducting divorce mediation with unrepresented parties via video conferencing.

Background
One byproduct of the rise of the internet and high-speed electronic communication is the advent of online services: medicine, shopping, and banking, to name a few. Legal services have followed slowly (as is often the case). Despite that, there are growing numbers of online legal services. The population at large, and millennials especially – who in 2017 overtook baby boomers as the largest generational cohort in the United States expect to be able to access services quickly and easily.
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In its broadest use, the term “online dispute resolution” or ODR includes the use of information and communications technology to help disputants find resolutions to their disputes.

ODR takes a variety of forms. Online businesses, like eBay and PayPal, innovated out of necessity and expediency.3

They resolve millions of disputes per year through their own resolution systems, independent
from the courts. These disputes lend themselves to online resolution because they are mostly low value and multi jurisdictional. In the world of the internet, people expect to go online, make a few clicks and reach their objective. Dispute resolution is no different.

Within online dispute resolution, internet-enabled legal assistance in family law is growing. Options range from pure DIY, to lawyer assisted to AI data input with computer-generated results, to mediation with a lawyer over video conference. (The success and quality
of DIY legal services and websites has vexed the legal retainer agreement to specifically outline the process, including stating that the parties agree there will not be other individuals listening in or watching who are outside the frame when they appear by video.

Third, establish a secure, online method of payment. This is routine now for most law firms, but even more important when providing service to parties who will not be in your office.

​Fourth, understand local practice. Although Wis. Stat. chapter 767 applies throughout the state, each county has its own special requirements and practices. When filing in a new county, call the clerk’s office and try to establish connection with someone who can answer your questions. To effectively guide couples through the process, you need to know required steps, from filing through the final hearing.

Technology Is Required
There are several technology pieces recommended to conduct mediation over video conference: a video conferencing service, file sharing, and a digital signature tool.

Video Conferencing Services. The heart of mediation over video is having a reliable, easy-to-
use method for video conferencing with the parties. There are many choices in this regard. Some of the better-known options are Skype, Zoom, JoinMe, GoToMeeting, and Webex. Nearly all are web-based – meaning you’re purchasing a service that requires an
internet connection and a web browser (usually for a monthly fee). There’s no software to purchase. Some services have free accounts, which then have limitations on features, such as the number of participants and the length of meeting.

Zoom has many features well-suited for mediation. It provides easy screen sharing with participants. For $15 per month, it provides more capacity and features than are even needed for divorce mediation. Most importantly, Zoom reliably and consistently provides the most important feature: a clear, smooth video connection between users. Clients can join from their
desktop computer (provided it has a camera), tablet, or phone. They do not need an account.

Other features to look for: a way to easily “caucus” with one party or the other by temporarily sequestering one party from the meeting. Easy screen sharing for displaying documents. Do your research, try some out, and choose one.

File Sharing. The other technology piece that is a necessity is secure file sharing. A divorce requires documents that contain Social Security numbers and individuals’ personal financial information. It is a bit risky to share this information over email. There are many file sharing services which solve this problem and provide additional benefits.

Services like Sharefile, Dropbox, and OneDrive permit users to securely upload and download files from a digital file cabinet. This has other advantages besides avoiding email for documents. When parties need to send you documents, the service permits a secure upload. Likewise, if you want to securely share a document with your clients, you can upload to the digital file cabinet. The other side benefit is that everything is in one space for the clients and the mediator.

Digital Signature Tool. The third useful technology piece is some type of digital signature tool,
a service or application whereby a person can sign a document on a screen, rather than having to receive it, print it, sign, and then scan back. Wisconsin law permits an electronically filed document to serve as the official record, and essentially treat PDFs the same as the original.

Adobe Acrobat has a built-in digital signature tool. There are several other services including DocuSign, SignNow, SignEasy, and RightSignature by Citrix. Like with other services, each has different features and pricing.

Conducting Mediation Over Video
Mediation over video differs from in-person contact in many ways.

​The most noticeable specific difference is that it may be difficult, at first, to build rapport with the parties through the screen. Video communication lacks the texture of in-person relationship building. The nonverbal is important in any communication, but especially in mediation where the issues can be weighty and emotional. Listening intently, always required, is even more important when interfacing over video.

Despite these challenges, the distance of video conferencing can sometimes be helpful: it’s a buffer between parties during intense moments. Being in the same room for emotional issues can add to the intensity. Mediation over video takes some of that away.

One issue that comes up occasionally is when one party may be in person and one may be over video. It is true that there is a different feel between an in-person conversation and one over video. Whether to require both over video or permit one in person is likely a judgment call for the mediator in consultation with the parties. Sometimes it is practical for one party to
be in person, because he or she is not as tech savvy or can bring needed documents. Other times, even a local person appreciates the convenience of not having to leave their home or office.

There are no additional or special ethics considerations for mediation over video. SCR 20 does
not have rules applicable to online mediation. SCR 20: 1.12 and 2.4 specifically address attorneys working as a third-party neutral and apply whether working with parties in person or over video conferencing. Furthermore, SCR 20:5.8 extends all of SCR 20 to law- related services, which arguably includes mediation.

​One general acknowledgement: it is important for the mediator to be comfortable and confident with his or her in-person process. Effective training and experience are essential. Mediation, like legal advocacy, can require a lot of mental bandwith to be used at once: listening, analyzing, assessing, thinking quickly, etc. Mediation has all of these.

Adding in a layer of communicating in a new medium can overload a mediator’s circuits. The risk of overload is minimized if a mediator can handle his or her regular in-person process with a comfort and familiarity that permits adding the layer of communicating over video and navigating the entire process over distance.

In this regard, a good way to gain some confidence with using video conferencing is to integrate in small steps. Instead of a phone call, occasionally talk by video conference with a colleague. Then perhaps try it with a client. A next step might be a settlement conference
via four-way video conference with you, your client, opposing counsel, and the other party.

Conclusion: The Future Is Here
Mediators thinking about embarking on mediation over video conferencing should adapt their mediation process, ensure they have the proper technology, and gain comfort and confidence with conducting a meeting over video conferencing.

​The implication of this technology is that parties anywhere in Wisconsin with a family law dispute can obtain high-quality, mediation regardless of their location.