What practical tips are there for conducting a remote mediation?

What practical tips are there for conducting a remote mediation?

Practical tips for the mediator

• never move a participant without being in the room with them, and announce the move clearly so they can acknowledge it. Being moved without adequate notice can be disconcerting

• don’t rush the process. As parties get to grips with video mediation, progress can seem slow but in reality it is usually quicker with moves between rooms and settlement agreement drafting in particular being much quicker

• get the mediation agreement signed in advance so you aren't spending time on the day agreeing the terms and sending to the parties and getting signatures etc

Practical tips for the lawyer

• recognise that you are going to have to do much more planning around the shape of the mediation

• consider whether the mediation should be conducted over a number of conversations over a number of days, with a long stop

• as external counsel prepare the client as you won't be in the same physical room. Decide how to run the plenary, who will speak and, if the client wants to comment, how you manage that. Don’t forget that email and text can also be useful for conversations in a side-channel. Remember, that everything is without prejudice so no real harm can be done if the client wants to vent anger or speak their mind and indeed it often helps to get it out into the open

• make sure you have a video pre-mediation conference with the mediator: an opportunity to test the system, deal with administrative issues and deal in advance with any privacy issues such as use of share screen. It is often useful to have this session with the other side and their lawyers so you at least get used to seeing them in ‘university challenge format’ especially if your clients haven't seen the other side's principals for a while. You want no surprises on the day if possible

• consider not having the mediation in full screen—it can be very useful to run emails in the background, providing an alternative communication route with clients, the other party and the mediator

• make sure you and your client take frequent breaks from the screen

• have all parties identify their key decision makers (who often do not attend in person mediations) and get them to commit to when they will be available

• if possible, and the mediation is about relatively simple issues such as payment and performance of easily defined obligations, have a settlement agreement in draft ready with the boiler clauses already drafted

Practical tips for the client

• make sure you have a strong WIFI signal, that your device is connected to power throughout and that everyone else in the house knows not to disturb you

• provide your lawyer and/or the mediator with your mobile phone number—helpful if you have trouble joining or are disconnected

• take the opportunity to meet your mediator remotely in advance and raise any concerns you might have

• don't share content on the platform unless comfortable with the security issues. Better to use email

• likewise if there is a chat function, only use it for anodyne comments such as ‘need to pop out for break’. Leave any written offers or more sensitive matters to without prejudice email exchanges

• be prepared for downtime when you are in the breakout room without the mediator and use it to make sure you get some exercise or some refreshment if still in coronavirus (COVID-19) ‘lockdown’. Eight hours looking at a screen is tiring. But if you do leave the room just pause the video and let the host know by email or text so they can contact you

• as with live mediations, make sure you have refreshments to hand as it is a long day and you need to maintain stamina

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