Meeting the video camera requirements for remote mediations

By Bryan Rendzio | Miles Mediation and Arbitration

Remote mediation practice is now the norm rather than the exception. As almost second nature, practitioners and mediators are becoming more accustomed to and comfortable with the nuances and processes that come with remote dispute resolution.

With the increase in this approach comes the question that often gets raised to mediators: whether participants are required to have their video cameras activated during mediation.

It has been this my experience that some participants choose to keep their video turned off despite maintaining audio throughout the process. For some participants, it appears to be a lack of ability to fully navigate remote platforms. For others, it may simply be a comfort level.

In Florida, cameras are commonly expected to be initiated so that the mediator may confirm which participants are present and observe communication as well as maintain confidentiality. However, I am not aware of any current statewide rule requiring video cameras to remain on at all times during mediation.

The Florida Bar has provided guidance as to its expectations for remote mediations, which comes from its “Best Practices for Remote Court Proceedings.”

The recommendation is that “all video cameras shall be turned on and all participants . . . shall be visible at all times while conferring with the mediator unless excused by the mediator or by agreement of all parties.”

In addition to The Florida Bar’s guidance, some courts have taken the guesswork out of the process through standing case management orders or local rules for remote proceedings that mandate operational audio and video.

Mediators also have the ability to place video requirements within their mediation agreements as part of the mediator’s role to control the process. Under section 10.400 of The Florida Rules for Certified and Court-Appointed Mediators, “[a] mediator is responsible for safeguarding the mediation process . . ..” Therefore, mediators have the obligation to ensure that the process is fair for all participants.

Some participants may feel they are at an unfair disadvantage if they are utilizing their video while others remain concealed behind a blank screen.

From the mediator’s perspective, the most significant reason for all participants to maintain video visibility is to ensure confidentiality. Without video, there is no means for the mediator to verify whether someone who is not part of the process is improperly sitting in the room or otherwise listening in on confidential communications.

Turning off the video also creates the suspicion for other participants that the audio-only party may be secretly recording the process. Participants are not permitted to record or otherwise photograph any of the mediation communications (i.e., screen sharing) without express consent.

While there is not yet a blanket, statewide requirement for parties to turn on their video cameras for mediations, there are certainly some local requirements for the process. Moreover, there are justifiable arguments for why the video should be activated, absent legitimate technical issues.

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