What are the main pros and cons of remote access mediation versus face-to-face mediation?

What are the main pros and cons of remote access mediation versus face-to-face mediation?

Produced in partnership with Charles Gordon, mediator of IPOS Mediation

Practising social distancing, coronavirus (COVID-19) style, presents serious challenges for the mediation of disputes. Some brave souls may still be willing to try face-to-face mediations (subject to compliance with the guidelines), but virtually all seem to have moved online during the coronavirus crisis.

At present there is not much need of debate—either mediate on line or probably not at all until the social distancing regime eases.

Two questions can however be posed today. If remote mediation is the only realistic choice, is it worth trying? Is remote mediation attractive in its own right and will it be part of the mediation scene post coronavirus?

Practitioners may answer both questions in the affirmative.

Online dispute resolution is nothing new—it has been around as long as the technology has been readily available. However, it is not really accurate to describe most of the available processes as mediation, they are really bargaining forums where offers and counter offers can be exchanged and accepted. They don’t involve much, if any, consideration of the merits of a case or the non-financial aspects of a dispute or settlement proposal.

This form of online dispute resolution has clear advantages in terms of speed, cost and efficiency. It may well encourage greater candour and realism when it comes to offers and counter offers. There is probably a greater push for revealing best offers and actually reaching agreement. Technology creates opportunities for innovative ways of facilitating settlement.

One technique which is attracting popularity is ‘blind bidding mediation’ where the parties engage in several rounds of online offers and the mediator monitors these to establish if the parties are sufficiently close to split the difference or accept a mediator’s proposal—a technique also used by mediators in conventional mediation if he or she judges that the time is right to introduce it.

However, to consider now the pros and cons of taking the process of commercial mediation online and preserving the defining characteristics of such mediation and, specifically, the role of the mediator in working through the issues with the parties and actively engaging with them in moving towards settlement.

Among the mediators at IPOS Mediation Chambers, anecdotal experience to date suggests that remote commercial mediation is more than an acceptable substitute for face to face mediation. The advantages include:

• saving of time and expense

• the ease of scheduling without concerns as to travel, domestic and international

• removal of the reluctance of parties to have to meet in person

• ability to reconvene whenever parties are available

It seems true that the immediacy and novelty of a virtual meeting does seem to encourage a more collaborative atmosphere. Balance against that, however, the absence of travel deadlines and the overall convenience of the process which can promote a slightly more relaxed approach, and the consensus is that there is not much overall difference in the length of mediations.

When considering the convenience and efficacy of online mediation, it is important to look at how the technology works in practice. There are of course a number of online conferencing platforms which can now be used for mediation. The most popular appears to be Zoom which has quickly established itself as the platform of choice for many mediators. Other platforms are available, see Remote mediation—platform comparator table.

Other platforms may well work well. The key, however, is for the technology to mirror the core components of face to face mediation. This requires the parties to be able to confer confidentially, with and without the mediator, and for the mediator to able to convene plenary sessions and breakout discussions of different groups as the mediation progresses. Online mediation is successful when the technology facilitates these forms of dialogues in a seamless fashion. The technology needs to stay in the background and be forgotten whilst the human interactions drive the settlement process. Confidence in the integrity and security of the platform is vital.

Are the human interactions the same in remote mediations? Clearly not, and it is important not to minimise the difference. Seeing people on your screen deprives you of the opportunity to read non-verbal cues. The mediator has to work differently in order to establish the same level of rapport, particularly if they have never met the parties or lawyers in person. No eye to eye contact, hand shaking etc. This is more about gaining experience of the online process but it will certainly be an important factor in deciding whether to mediate online when face to face mediation is again possible.

It has always been a mantra of mediators that thorough preparation is the key to success. Simply throwing a bundle of all the documents at the mediator and turning up on the day is a recipe for failure. This mantra is magnified many times in the online arena. Bundles need to be electronic if at all possible, well organised and with agreed pagination. Core documents should be easily accessible since they are likely to be put up on screen in plenary and private sessions. Lawyers need to prepare their clients thoroughly for what the process will involve. Not being in the same room means that they need to have done a lot of the heavy lifting before the mediation. Practice sessions to ensure familiarity with the technology and the process are also vital.

Good preparation is not a drawback of remote mediation but it is even more important than in the traditional format. The key point is to really focus the bundle on core documents with other background reading being provided in advance to the mediator.

In conclusion, online dispute resolution has been with us for many years and will continue to be part of the dispute resolution landscape. Online commercial mediation has developed rapidly out of necessity but is probably here to stay. It may be anticipated that one of the first questions in the post coronavirus era, when considering mediation, will be: ‘Shall will do this online?’ Parties and lawyers may well consider that they should give remote mediation a try in certain disputes and only revert to face to face if an online settlement cannot be reached. Perhaps a new criterion for judging mediators will be—is this individual a good remote mediator?

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