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Recently, Nate Lindsey achieved a favorable result for a Rasmussen Dickey Moore client in a construction contract dispute that went to virtual arbitration. He discussed his experience with attorney Matt Jensen who also recently completed virtual alternative dispute resolution. Their experiences are captured here in these five quick questions for this month’s Cross-Examination. 

What was the format for your virtual hearing?

Nate: I appeared for an arbitration involving a construction contract dispute via Zoom. It involved three witnesses, a fair amount of documents, and lasted around four hours. This followed a very brief Zoom mediation where we didn’t make much progress coming to an agreement on the claim.

Matt: I had a mediation last week involving husband and wife plaintiffs and three defendants. Generally, the case involves a defectively designed home. We had taken the plaintiffs’ depositions already and the parties were all pretty well aware of the documents both sides thought were important.  We had initially planned on all of the parties gathering together by Zoom for the first round of talks. However, at the last minute, the mediator decided he only wanted to meet with the plaintiffs via Zoom in the initial meeting. Then he held a phone conference with all of the defendants before breaking off and calling each of us individually in successive rounds. 

Did you do anything different approaching the hearing since you knew it was going to be virtual? 

Nate: After the initial mediation, which was also through Zoom, I decided to find a little box to place my laptop on so I wasn’t looking down at the screen or camera. This felt a little more natural than the first call because I was eye level with screen and better centered. I tried to keep my notes and second screen with exhibits angled so that I was always facing my computer camera and never looking or turning away.

Matt: While I was pretty sure the mediator had already been provided with any important documents, I had scanned copies of everything I felt might be needed in a folder on my desktop just in case we needed to find something quickly. I also probably spent a little more time discussing the case with the carrier before mediation since there would nobody would be with me live. 

What went well during the hearing and what do you wish would have gone better? 

Nate: The only thing that didn’t go well was the arbitrator’s Zoom account started to boot us off during the final hour of the proceeding. I don’t think anyone knew why. Luckily, there was a backup account link ready to be used.  Having a “Plan B” for handling a virtual conference is highly recommended. 

Matt: The mediator decided that since we had already taken the depositions of the plaintiffs, there was no need to have the defendants present on Zoom. So, there were no opening statements and, while I am sure the mediator did a fine job of presenting our arguments, there was no opportunity for me to make those arguments directly to the plaintiffs. For reasons I will explain below, I think having the defendants in the initial Zoom meeting would have been beneficial. As for what went well, I did the mediation from my office where I had access not only to my computer but to my cell phone and a land line. This worked out well because when the mediator would call me on my cell phone, I could (usually) ring up the carrier on my land line so he could listen in. 

Do you think the virtual hearing was as effective as doing it in person? 

Nate: Generally, I think the format was fine for an arbitration where both parties knew we weren’t negotiating and we were presenting the case on the merits to the arbiter. I think had we have mediated in person, we would have been more likely to reach an agreement before the arbitration.   

Matt: For the right type of case, the Zoom mediation could work out pretty well. However, my case was further complicated by the unrealistic expectations of the plaintiffs in terms of their damages and the failure of their attorney to manage those expectations. So, my mediation was kind of doomed from the start. We did not settle and made very little progress towards settlement. I believe there is a chance we could have made greater headway if we could have met with the plaintiffs in person to explain why the law did not entitle them to the damages they were seeking. 

What’s your best piece of advice for an attorney approaching their first virtual hearing? 

Nate: The organization of lots of documents and preparing to present them on the screen is crucial. I handled it alright by myself, but I think I could have done even better had I used an administrative assistant or paralegal to help me with the share screen function and quickly locating documents. 

Matt: I agree with Nate on documents, but I think everything has to be a little more organized on the whole. There was at least one time when the mediator called me and I could not get the carrier on the phone.  So, having spent a lot of time with him discussing the issues in advance of the mediation was good because I pretty much knew how he was going to react to everything the mediator was telling me. 

Alternative dispute resolution.

RDM attorneys have extensive experience in alternative dispute resolution including arbitration and mediation. We also have certified arbitrators and mediators to help resolve your case.

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