By:  Hon. Suzette Carlisle Flowers, Ph.D.
Missouri Division of Workers’ Compensation
St. Louis, Missouri

 

 

Introduction

In 2018, I began research on mediations conducted with the use of distance technology as an alternative to in-person mediations.  A group of twelve judges were interviewed, and the overwhelming response was in-person mediations were the gold standard.  At that time, most judges did not have the technology to conduct mediations using distance technology, nor did they have a reason to do so.  In-person mediations worked fine.  The majority of people could appear in-person for mediations.  A few met by telephone.  If parties could not appear in-person, the case was rescheduled for another setting.

However, that changed in 2020, when the pandemic began. Most courts scrambled to develop a plan to manage dockets remotely.  Some courts continued to remain open, but many courts closed their doors to the public for a period of time. The Division of Workers’ Compensation in Missouri switched from an in-person format to a telephone docketing system, within one week of the doors closing in March 2020.   A hybrid of this system continues to this day.  Currently, the St. Louis Office is back in person for mediations and hearings.  Conferences with pro se employees are still handled by telephone.  Pre-hearing announcements are made by email, unless special arrangements are made.

Shortly after the pandemic began, the National Judicial College conducted a survey of judges and found that six out of 10 judges who responded did not feel equipped to handle the impact of COVID-19 on judicial proceedings (Firth, 2020).  In 2021, as part of my research toward a doctorate degree, I conducted a survey of judges across the country, ranging from administrative agencies to appellate courts.  By that time, judges reported a marked increase in their ability to use technology during mediations.

The survey asked judges “Did the need to use Distance Technology to Mediate during COVID-19 Outweigh the Potential Ethical Pitfalls Related to Its Use?”  More than 500 judges responded to the survey.  Seventy-nine percent of judges who responded to the question agreed that using distance technology to mediate during a pandemic outweighed any ethical risks associated with its use.  I submit to you that judges made ethical concessions with the use of technology during the pandemic in order to keep cases moving.  However, once they realized distance technology provided an effective alternative when parties could not meet in-person, the idea of virtual mediations grew in popularity.

What is Distance Technology?

By 2024, many people have used one or more of the distance technologies listed below.  They are known collectively as Distance Collaboration Modalities (“DCM’s”):

• Video-Teleconferencing (“VTC”)
• Electronic Meeting Systems (EMSs”)
• Virtual Environments
• Electronic Mail (E-mail)
• Instant Messaging (“IM”)
• Remote Document Sharing
• Telephone Conferences

The Survey

The judges surveyed developed the following checklist of reminders to improve the success of mediations held using distance technology.  These techniques apply to other proceedings when distance technology is used, i.e. hearings and motions.  The following checklist may be shared with parties to remind them of tips for a successful virtual setting.  Also, included is a checklist for judges as they prepare for virtual settings.  Judges surveyed reported they will continue to use distance technology after COVID-19 was contained (122 judges to 14 who did not plan to use it – see chart below).  As we have returned to more “normal” in-person settings, this checklist will serve as a reminder of this new and invaluable tool in our toolbox, that we can use when and if the need arises.  All items may not apply to your court, and you may have other items that work for you.  This template is intended to be a guide to improve your chance for a successful mediation using distance technology.  The checklist below can be used for all types of settings when the parties do not appear in person. Perhaps you have other ideas you can add to this list.

State of _________
Division of Workers’ Compensation
Court Guidelines for Virtual Proceedings

John Doe, Claimant Injury Number – XX-XXXXXX
ABC Com[any, Employer Date of Injury – XX-XX-XXXX
Peace of Mind, Insurance Claimant’s Attorney –
Defense Attorney –
The following guidelines will ensure the success of the virtual mediation scheduled for the above case on ___________. Please direct questions/comments to the judge assigned to the
case. Thank you in advance for your cooperation.
Before the virtual setting:

1.  Expectations
a) Attendance: Everyone present must be identified for the record.
b) Order of Appearance: Claimant, Defense, Judge.
c) Responsibility: Complete mediation summary and provide to the judge and parties before mediation.
d) Physical appearance.: Appropriate for court. Sitting. No appearance from bed.
e) Decorum: Respectful, take turns.
f) Background: No inappropriate filters and background distractions.
g) No food.
h) No smoking.
i) Comfort: Water and coffee are acceptable.
j) Lighting: Avoid strong background light.
k) Coaching: Parties agree not to be coached in any way.
l) Hearings: Witnesses swear or affirm not to be coached in any way.
m) Consequences for failure to comply, i.e., termination of the proceeding, or removal of parties or witnesses from the virtual proceeding.

2.  Internet questions:
a) Court technology used: Webex.
b) Internet connection: Is the internet connection stable?
c) Bandwidth: What is each participant’s bandwidth?
d) Telephone: Is the telephone connection stable?
e) Headsets: recommended to reduce noise, if available.
f) Meeting ID/Password: Provide participants with options to join the meeting, i.e., telephone numbers, meeting links, meeting ID numbers, and passwords.
g) Help: Provide participants with contact information to report connection problems or request assistance.
h) Include a digital box account or encrypted email for parties to upload confidential documents or email documents to the judge who can share them with everyone.
i) Provide technical assistance or direct parties to it, if needed.
j) Offer parties a test run, or encourage them to do their own, if needed.
k) Include a digital box account or encrypted email for parties to upload confidential documents or arrange for parties to send documents to the judge   who can share them with everyone.
l) Provide or direct parties to technical assistance if needed.
m) Offer parties a test run, or encourage them to do their own, if needed.

 (Judges’ Use Only)
Court Guidelines for Virtual Proceedings

The Honorable Judge _________
Workers’ Compensation Court
Address
Phone number
Email address
State of _________
Agency:

At the start of the virtual setting:
a) Identify who is present. One person per virtual device, per camera, if used.  No sharing of devices.
b) Only the parties/witness are allowed to join, view, or participate in the virtual proceeding. Do not share the link to join the meeting.
c) Review basic computer functions; chat, raise hand, share a document, etc. with participants and solicit questions.
d) Remind parties that mediation discussions are confidential and cannot be used in any other proceeding. Protective orders may be issued, if needed.

 During the virtual setting:
a) No recording of the proceeding, except for court sanctioned proceedings.
b) Cameras are to remain on at all times, subject to a pan of the room, if requested by the Court at any time.
c) Cell phones, IPads, computers, and other devices not used for the proceeding are to remain off.
d) Participants are to remain visible at all times from the chest up during the proceeding, until they are excused by the Court.
e) Device volume is to remain up throughout the proceedings.
f) Only parties and attorneys are present unless a witness is testifying.
g) Participation in the proceeding is express agreement to the terms expressed by the Court.
h) Parties will be placed in breakout rooms as needed.
i) Judge will remain observant about the activities of participants.
j) Judge will solicit attorney support with observation of clients and witnesses to ensure compliance by all in attendance.
k) If it is not possible to meet virtually due to an unforeseen event, have a backup plan and ability to contact all parties involved.
 

After the virtual setting
a) The judge will continue to improve technological to improve the judicial services to the community.  Most judicial cannons require technical competence.