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Produced in partnership with Chris Fitton, mediator of IPOS Mediation
The legal and contractual principles under which a video conference (VC) mediation is conducted (eg without prejudice, confidentiality, privilege etc) are the same as for an in-person mediation. The process is typically the same too, with the mediator hosting a virtual joint session at the beginning of the day followed by a succession of virtual private sessions with each party in their separate virtual rooms.
But there may be some practical differences/considerations in the process, including:
• pre-mediation review
• staggered joining times
• plenary meeting
• maintaining focus
This is ostensibly to check that the advisers each have the IT working and are familiar with operating the platform’s user interface. But lawyers should be prepared for this to digress into other areas, like agenda and timetabling for the day. The mediator may also offer to do a similar dry-run VC for lawyers and own-clients privately—that will double as your client’s first introduction to, and discussion with, the mediator saving time on the day.
At the start of an in-person mediation the mediator typically sees each side privately before the first joint session, often with the other side simply waiting in their own room. With a VC mediation there is the opportunity to save that waiting time, if desired, by having the attendees join the video call at different times—so for example the claimant attendees could join at 09:15am with the defendant attendees joining at 09:45 am. (As with an in-person mediation, these meetings will still take place in the party’s own private ‘breakout’ room with attendees only being transferred by the mediator into the joint session with their consent, and when ready).
At an in-person mediation, advisers pre-plan where each person in their group will physically sit for the joint session, always sitting together, and usually on the opposite side of a table to the other party/parties. This is not possible in a VC mediation because the participants appear in a grid fashion on your screen in apparently random order. Lawyers may wantto warn their clients to pay more-than-usual attention to the personal introductions made by the mediator at the beginning of a joint session, particularly if there are going to be many different speakers in a dispute with more than two sides. In a VC mediation one cannot instantly proxy a speaker’s allegiances by seeing which group they are sat with.
At an in-person mediation, parties and their advisers are sat together in a physical room, talking about the merits/demerits of dispute near-constantly, including when the mediator is out of the room. This ‘forced focus’ is often credited with making mediations work, enabling sound reflection and informed decision-making, whether or not that means deciding to settle. In a VC mediation, however, where the attendees are typically at home, this focus is at risk from factors not so present in an in-person mediation.
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