Do you run a remote mediation in the same way as a face-to-face mediation?

Do you run a remote mediation in the same way as a face-to-face mediation?

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

 

Pre-mediation review

With a VC mediation the mediator will usually ask for there to be a pre-mediation review—a joint video call between the lawyers using the chosen video conferencing platform taking place a few days before the mediation day.

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.

 

Staggered joining times

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).

 

Plenary meeting—no seating plan!

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.

 

Maintaining focus

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.

This is a risk both with the advisers—who will likely be sat at, what is for them, their day-to-day work station (during the current lockdown), receiving emails on other matters—and with their clients, perhaps also keeping a business going/managing home events. The mediator can help, not just by doing what they can to quicken the pace of progress, but also by clearer agenda/task-setting for party groups (for example focussing on a particular aspect of the case the other side has issues with) and by being clearer about when they are likely to return to a particular room, allowing participants to schedule breaks. In fact, taking quality breaks may in fact be more effective in a VC mediation—where clients can properly ‘get away’ from their lawyers and vice versa—than an in-person mediation. During in-person mediations often the only change of scene anyone can get is to sit a while in the law firm’s reception area or perhaps walk the car park.


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