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Kent Altsuler Authors Texas Bar Blog on Conducting Virtual Mediations

Houston, Texas (October 10, 2022) – Houston Partner Kent Altsuler recently authored a State Bar of Texas blog on how the COVID-19 pandemic has affected mediation sessions in the legal profession.  

The blog post, titled “Mediation in the Post-Pandemic World,” describes the universal implementation of virtual mediations conducted over Zoom since the beginning of the pandemic in 2020, a trend which looks like it is here to stay long-term.  

Mr. Altsuler talked about how attorneys should be vigilant of the limitations of remotely conducted mediations, which are sometimes treated as glorified phone calls. But based on his personal experience, he urges attorneys to use them to the best of their ability and be clear about their purpose for mediation in a particular case. 

“After two years, I’ve finally come around to the notion that they can be almost as effective as in-person mediations when it comes to actual settlement results,” he wrote. “Even though parties feel less pressure with Zoom than they do in person (less pressure to settle, less pressure to move, and less pressure to be affected by someone else’s behavior), enough of my Zoom cases are settling that I now have confidence that Zoom is not a compromise killer in and of itself.” 

The blog goes on to describe how mediating parties now rarely give lengthy openings to sessions, as there is a collective desire to not waste time with posturing and to cut straight to the negotiation of potential settlement amounts. Mr. Altsuler encourages more collaboration in light of this new sentiment. 

“Because a mediation is ultimately the attorneys’ show, I don’t insist that they pound the table or present a power point if they don’t want to,” he opined. “But in those cases where the parties’ confidential mediation memos are simply not enough to fully educate me on the case, I encourage them to stick around in the main Zoom room together so that we can have a conversation about the non-controversial aspects of the case (where the negotiations left off, what’s really going on here, the amount of alleged damages that have already been disclosed, etc.)” 

Mr. Altsuler broke down two problems in traditional in-person mediations that have been greatly exacerbated by the virtual process: hyper-aggressive initial demands/offers, and the misuse of brackets, devices that limit the parameters of a potential settlement going forward. 

He discussed how “the beauty of a mediation is that everyone is focused on the same case on the same day. It’s harder to make sure that’s the reality with Zoom. For this reason, I would recommend that initial demands and offers be at least slightly reasonable. It’s hard enough to keep someone interested by Zoom, and a demand or offer that feels like it’s not made in good faith can lose someone for the rest of the day.” 

On brackets, which are disliked by many, Mr. Altsuler encourages attorneys take their time to come up with numbers that make sense, as they can give all parties in the mediation something to talk about when the outcome seems bleak. 

“I have found that with Zoom, one misguided bracket proposal can waste a great deal of time and mental energy—and lead the parties down the wrong rabbit trail,” wrote Mr. Altsuler. “We’ve all had mediations where we’ve been left alone in our room for way too long; with Zoom, that problem is magnified.” 

In the blog, Mr. Altsuler also discussed how attorneys should utilize mediator’s proposals to their advantage, which usually involve a number that the impartial mediator has some reason to believe both sides might accept. 

“Most of my cases settle by mediator’s proposal,” he said. “Even COVID can’t stop a good deal from getting done.” 

Mr. Altsuler has been a certified mediator since 2011. He has mediated over 200 matters involving commercial disputes, real estate issues, personal injuries, and auto accidents, and brings more than 20 years of litigation experience in evaluating both sides’ cases.  

Read the full Texas Bar blog post here.  

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