Mediating remotely—how and why, now and in the future

Mediation specialists, In Place of Strife (IPOS), consider the pros and cons of remote mediations in light of their own experiences, particularly augmented by the move to remote working in response to the coronavirus (COVID-19) pandemic. They also consider where remote mediation will be in a post-coronavirus world, whenever that may come.

Mediation users and mediators, have always set great store by the process of mediation by which individuals come together to have frank conversations, look into each other’s eyes, understand the emotional blockages and get to the bottom of the issues. So, now that lockdown has put this face-to-face contact on hold, how has mediation adapted and does remote mediation work?

Remote mediation or online dispute resolution (ODR)

Of course, there have always been mediations that take place remotely. For example, the courts run a telephone mediation scheme for disputes under £10,000 where parties are given half an hour to settle their dispute. However, this is little more than facilitated bargaining and in such a time frame it is difficult to get into the issues.

ODR has also been the subject of many conversations over the years and now has an accepted place in lower value consumer/trader disputes. In some cases, it incorporates a degree of automation. With the increased availability of, and familiarity with, appropriate technology it may well become an established route for settlement of low value claims generally.

However what we are talking about here, as remote mediation, is taking the process of commercial mediation online and replicating it in a video-conferencing environment. It is probably fair to say that solicitors and clients have, in general, been suspicious of and reluctant to engage in remote mediation, perhaps because of a concern that they might lose control or the technology is alien to them. Nonetheless those who have experienced remote mediation over the past few weeks have generally expressed astonishment at how closely it mirrors physical mediation and how effective it is. A consistent comment from participants is that, once the mediation is underway, they have forgotten that they are mediating remotely.

Which platform is best?

The mediation community has flocked to Zoom as the conferencing platform of choice because it best replicates face to face mediation, with the use of breakout rooms and the ability to move people around. Each party is allocated their own ‘room’, their sanctuary, where the only person able to enter their space is the mediator when invited in. The mediator can create a range of further rooms to allow him/her to arrange meetings, perhaps lawyer to lawyer, expert to expert and, of course, principal to principal. And there is a space where everyone present can meet in a virtual plenary session.

There are many other conferencing platforms, such as WebEx, Microsoft Teams, Bluejeans and so on which mediators can use if required but most are agreed that these are less effective and, in some cases, reliable. Some have questioned Zoom’s security standards. At the technical level, Zoom have been quick to respond to concerns by making a number of changes to their security. At the user level, the mediator, as host, has significant controls over the security settings and the admission and ejection of attendees. In the course of many mediations conducted by IPOS, neither the mediators nor the parties have had had concerns about security. Of course, each individual mediator and their clients will need to make their own investigations and analysis of the most appropriate platform for them to use, depending on their individual circumstances.

Advantages and disadvantages of remote mediation

It has taken a pandemic to awaken people to the significant advantages of remote mediation. Generally, it is easier to schedule mediations and find date agreement when travelling is no longer an issue. But above all there is significant time and cost savings in avoiding the need to travel at all. Nearly all commercial mediations bring participants from all over the UK and, in many cases, from overseas. Indeed, a recent client commented that had he known of the possibility of running the process online he would have certainly suggested it for a case that he'd had two weeks earlier where parties flew in from Canada, Brazil and elsewhere.

The question has come up as to whether remote mediation speeds up the process. Our early experience has been that remote mediations tend to fill much the same time as the in-person process. On the one hand, the novelty of meeting online seems to produce a healthy atmosphere of collaboration which could be expected to speed up the negotiations, on the other hand the convenience of mediating from one’s own home or office without the pressing need to catch a train or plane can slow it down. On balance we are finding little difference between remote or face-to-face timescales. There is, of course, the particular bonus that if the mediation runs late there's no dash for the last train but just a short walk to bed!

One particular advantage, experienced last week, was that, where interpreters are required, the process via video is more seamless than face-to-face. The interpreter can interpret simultaneously, on mute, thereby reducing the need for the speaker to wait for interpretation.

So, what are the downsides? There is a need for better preparation although that can hardly be seen as a downside! Lawyers need to ensure that clients are fully briefed on the issues ahead of the mediation session and that the procedure of mediation and the range of settlement is carefully explained and understood. It is likely that the mediator will be involved at an earlier stage because he/she will want to hold a practice session with the parties beforehand to iron out any technological issues. The parties should be prepared to use this time to engage with the mediator so as to be able to hit the ground running on the mediation day. In addition, bundles, which are likely to be electronic, need to be well organised so that they can be referred to effectively and efficiently.

Perhaps remote mediation means that there is a slight reduction in people’s ability to read the non-verbal cues on screen as opposed to in-person. Sometimes a participant will have poor lighting or camera angle and this can make it difficult to interpret their expression in circumstances where the spoken word forms only a part of our means of communication. When more than one person is sharing a camera in the same room, they are inevitably further from the camera and more difficult to see and interpret.

And it has to be said that whenever you are relying on technology, there is the risk of a glitch. For the most part, clients have found the Zoom platform incredibly stable but there will occasionally be a participant with an unstable internet connection or someone who has failed to connect their device to the mains and the battery runs out. As a backup, one can always revert to telephone, email or text, if only temporarily.

Is there a future for remote mediation?

The question remains as to whether remote mediation will see an uptake post coronavirus. It is our view, that this will be the case. Parties have commented, in recent weeks, that they wished they had known this could be done before now. In the post-coronavirus era, there may well be a retreat from globalisation. Having spent so much time working from home, there will, no doubt, be questions as to the need to travel as much as we do, whether by plane, train or car, spending time that could be used more productively elsewhere and leaving behind a carbon footprint. And there will be a greater familiarity with technology and, in particular, video conferencing where whole families, not just professional people, have been using it as a lifeline during lockdown.

The ease and speed of setting up a remote mediation may also make it the choice for those who, pre-litigation, need help with having a difficult conversation. The current crisis has caused many such cases where there is often no need for a full day session, but the use of a neutral third party skilled in facilitating negotiation and discussion may be just the thing for those who realise that, in these unprecedented times, embarking on litigation to enforce contractual rights is not the way forward. The skills of a mediator can help parties find compromise, or a solution which works for both of them and in many cases, where this is important, helps to preserve the commercial relationship so all involved can move forwards, quickly and easily.

This article was first published on LexisPSL Dispute Resolution on 20 May 2020.

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