I have been very pleasantly surprised at the ease with which it is possible to undertake a difficult civil/commercial mediation online. I thought it would be useful to share the experience of setting up and running an online mediation for the benefit of other lawyers and their clients. I recognise that the immediate impact of the COVID-19 pandemic has caused us all to review our working practices. The occasional “laptop day” at home may be very different to running the business from home on a longer-term basis. However I think we will all emerge from this difficult lockdown period with a completely different view of the way that work can be done.
This was a mediation planned some weeks before as a physical meeting but converted into an online mediation involving six different people (five with video and one without) and using five different means of communication i.e. Skype for Business, Zoom, texting, emails and phone calls.
It might be difficult to argue that it is easier to establish a good relationship with the parties remotely than it would be in person. However, the ease with which video technology can be utilised in group meetings means that these can be infinitely more productive than the equivalent conferenced telephone call. In fact, I believe that there are actually several potential advantages which will lead to this being an increasingly popular means of conducting mediation even when the lockdown has ceased.
- The parties may feel more comfortable by being in their own familiar environment rather than a mediation venue even if this were a neutral one.
- The ability to avoid having to travel to the venue potentially involves a significant saving of time and cost (but see below).
- The sharing of documents and/ or a travelling draft of the settlement agreement seemed much easier using shared screen technologies and email.
It becomes much easier to organise and coordinate a potential “second day” as an online mediation day. Admittedly in this case, it was made much easier by the fact that diaries were less cluttered as a result of the lockdown than might otherwise have been the case. However, the second day was much shorter, we were geared up to do it remotely and, once again, no travelling was involved and no venue required, and I believe it would have been easier to fit this into busy diaries in any event.
Top tips for online mediation
1. Online mediation depends upon having reliable communication links. Therefore, some of the time saved by not having to travel, will need to be spent on the additional preparation that is required to make remote mediation work effectively
It will be important for the mediator to establish with each individual party and representative the best platform to use. Using Zoom for online mediation is probably the most flexible and currently most popular, but, despite recent upgrades, there are some who are still concerned about appropriate levels of security. Zoom has been working hard to address the concerns.
2. Most people will at least be able to communicate by smartphone including an internal camera but be aware of some of the limitations of these technologies. For example, tablets do not always display “track changes” in marked up documents; it may not be easy to view large documents on a small screen and see the video.
3. Ensure that you are familiar with the platforms to be used and that you have a fallback communication platform in case the preferred option fails. Be aware of the need for the parties to have I.T. back up.
4. Amend your standard mediation agreement to deal with the particular issues to which this format gives rise e.g.
- additional concerns about confidentiality (who else is “in the room”).
- agreement to avoid any attempt to record the dialogue and
- additional provisions to outline the ways in which the parties will evidence a settlement agreement. (Most mediation agreements will require that the settlement agreement will be in writing and signed by both parties, which will generally not be possible).
5. Ensure that the parties will have the facility to accept and transmit emails and that at least one member of each party’s group will have the ability to draft or amend a potential settlement agreement.
6. Be firm with the parties about preparing a single properly indexed and/ or “bookmarked” mediation bundle. Vague references to “tab five” of one of two or more unindexed bundles will lead to frustration.
Above all, help the parties to enjoy and appreciate the process and look forward to being able to wind down as soon as you have finished!
Tony Hughes :