Mediating with Technology
SYNOPSIS: Mediating through Zoom is easy, convenient and cost-effective but attention must be paid to how you are going to get the Agreement “signed” to ensure enforceability under Rule 69, ARFLP.
Mediating in the Age of Technology
The availability of teleconferencing platforms like Zoom and many others have proven to be an invaluable resource to keep Court hearings/trials and related matters moving through a court system that otherwise might have ground to a halt during the pandemic. The pandemic has had a devastating impact on our country and many of its government operations, including the Court system. Technology has allowed a “work-around” to help those who’ve needed access to the Courts.
I have relied extensively on Zoom in my Mediation practice since March 2020 to assist litigants in family court to resolve cases. Litigants continued to seek an alternative to the expense, anxiety and uncertainty that accompany a trial but caution dictated a forum other than in-person discussions in a small room.
Zoom was and is a feasible, convenient, and effective forum for mediations.
My experience with the Zoom platform over the last 24 months has been excellent. I was a little skeptical about whether it would be effective. However, I can say without any reservation that it is, in fact, an excellent and convenient forum in which to conduct mediations. I particularly like the ease of creating “breakout rooms” which mimic the breakout rooms we would have in a mediation--even when the lawyer and client are in different locations, they are together in the “breakout room” and can talk to each other without concern that anyone can listen in. I have also found the ability to use the "share screen" to present exhibits and documents, as well as edit documents with simulataneous input from the lawyer and litigants, to be very efficient and helpful in the resolution of cases.
When I schedule a Zoom mediation, I advise the attorneys and parties that our Mediation will be conducted just as I would conduct an in-person mediation, i.e. each of you will be assigned to a “breakout room" where we can speak privately and you can express your opinions about issues. I have found no difference in the ability to settle a family court case using Zoom rather than meeting in-person.
The convenience which permits each participant to be at home, their own office or anywhere the party or lawyer would like to be, rather than driving to and being in someone else’s office is, in my opinion, a tremendous benefit to a client, not to mention not having to pay for the attorney’s or staff’s travel time to attend a mediation. In addition, should access to documents be necessary, the litigant (and certainly the lawyer or staff) will have immediate access to the documents in their own office. I think the benefits accompanying teleconference mediations will encourage its continuing use long after the pandemic has receded.
One unexpected issue which accompanied the convenience of all the parties being in their own chosen location was how to get documents signed when an agreement was reached. Rule 69, Family Law Rules of Procedure (ARFLP), sets out requirements for an agreement to be a “binding” settlement agreement. Any lawyer who has spent a long, tiring day getting to a settlement only to leave “signing” to “later” will sooner or later learn the very hard lesson of the importance of getting the signatures before everyone is gone. No signature equals no agreement equals a long, tiring and probably expensive day wasted.
Arizona has, like 46 other States, adopted the Uniform Electronic Transaction Act (“UETA”), which recognizes “electronic signatures” the same way as “ink” signatures if they meet certain legal requirements. See Uniform Law Commission https://www.uniformlaws.org/committees/community-home?CommunityKey=2c04b76c-2b7d-4399-977e-d5876ba7e034. See the excellent discussion of the use of electronic signatures in the Rose Law Group article, “Is an electronic signature valid?” https://www.roselawgroup.com/is-an-electronic-signature-valid/
The following captures, in a nutshell, where we are today with electronic signatures:
The ESIGN Act is a federal law passed in 2000. It grants legal recognition to electronic signatures and records if all parties to a contract choose to use electronic documents and to sign them electronically.
UETA, a precursor to the ESIGN Act, was introduced in 1999 and has been adopted by 47 U.S. states, as well as the District of Columbia and the U.S. Virgin Islands. Among other things, UETA provides that when a law requires either a writing or a signature, an electronic record or an electronic signature can satisfy that requirement when the parties to the transaction have agreed to proceed electronically.
UETA and the ESIGN Act solidified the legal landscape for use of electronic records and electronic signatures in commerce by confirming that electronic records and signatures carry the same weight and have the same legal effect as traditional paper documents and wet ink signatures.
Our statutes, ARS 44-7001, et seq. “Electronic Transactions” establish the legal equivalence of electronic records and signatures with paper writings and written signatures. The UETA The UETA actually outlines four major requirements that all electronic documents must meet to be considered valid and enforceable:
1. Intent to sign;
2. Consent to do business electronically;
3. Association of the signature with the record;
4. Record retention
The easy solution to making sure that when you reach an Agreement during mediation that you have an enforceable Rule 69 Agreement is to make sure you have the right electronic signature software. The mediator must ensure that every necessary document to enforce the Agreement has a legal digital signature. ARS 44-7033.B states:
B. There is a rebuttable presumption that the secure electronic signature is the electronic signature of the party to whom it relates.
What is a “secure electronic signature”?
44-7031. Secure electronic signatures
A signature is a secure electronic signature if, through the application of a security procedure, it can be demonstrated that the electronic signature at the time the signature was made was all of the following:
1. Unique to the person using it.
2. Capable of verification.
3. Under the sole control of the person using it.
4. Linked to the electronic record to which it relates in such a manner that if the record were changed the electronic signature would be invalidated.
An electronic signature satisfies any law that requires a signature. ARS 44-7007.D
In conclusion, Mediating through Zoom is easy, convenient and cost-effective but attention must be paid to how you are going to get the Agreement “signed” to ensure enforceability under Rule 69, ARFLP. While I do not think that Zoom is appropriate for trials or hearings because, as a former trial judge, I believe the trier of fact does, indeed, need to actually see and watch witnesses testify (and to ensure no one in the "wings" is assisting with answering questions), no such concerns exist with a mediation-it simply a conversation between the party, the mediator and lawyer who have a common goal of trying to settle the case.