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The coronavirus (COVID-19) pandemic has forced mediators to conduct alternative dispute resolution (ADR) sessions remotely. Jamie Gamble, barrister at No5 Barristers Chamber, gives ten top tips for remote ADR in personal injury and clinical negligence cases and considers the future of ADR.
In many cases, mediation can be an unnecessary additional expense compared with a joint settlement meeting. However, even in the non-virtual world, mediation can have significant advantages in the right case: for example, it can be useful to facilitate non-judicial remedies such as apologies or discussions of remedial action that has been, or can be, taken. In the virtual world, a mediator can also be very helpful in facilitating and organising the technology used to move different parties between different ‘rooms’.
As with a remote court hearing, it is vital to limit the size of a digital bundle for a virtual mediation in particular. Mediators need only the core documents in the case and won’t thank you for overburdening them. Become familiar with how to organise a PDF bundle, and make sure that it is paginated and bookmarked.
Video-conferencing is nearly always preferable as it provides far more human interaction between the parties. It is not always possible, however, and in such cases (and particularly more straightforward claims) the use of the old-fashioned telephone still has a place.
Many mediation providers will encourage the parties to have a test of the conferencing facilities in advance. This is a good idea, and for any video ADR it is vital to make sure that everyone is comfortable with the technology before the day. It is also necessary to think carefully about which video technology to use. There are a number of providers of such technology and while most services are similar there are differences. Also be alive to the fact that some organisations are restricted in the services that they are permitted to use, and you will need to pick a service that is suitable for everyone who is attending the meeting.
This is vital before any ADR, but even more so in the virtual world. As well as making sure that they are comfortable with the technology, claimants in particular need to understand clearly how things will work on the day and have a clear (and realistic) understanding of possible settlement parameters. A good mediation should have the claimant at the centre of it: it is important that they feel involved and fully understand what is going on at all times.
One of the advantages of virtual ADR is that distance is no barrier to attendance. Defendants in particular can consider individuals attending, even just for parts of the ADR, where in the real world it might have been felt disproportionate or inconvenient.
However well you prepare, there is a risk that things may go wrong on the day. Be prepared to adapt. For example, if someone’s internet connection lets them down, it is possible to join a Zoom meeting by telephone. Also consider different technology for different purposes: a WhatsApp group can be a useful way during a mediation to let the other side know that you are ready to log-on and discuss matters with them again (or even communicate offers); sometimes it can be easier to simply telephone your opponent for a brief one-on-one discussion during a video JSM.
While this is of course a matter of personal preference (and, indeed, style) a convention seems to have emerged of smart casual dress code being the norm for video ADR. There have been a number of articles in the media about the ‘Zoom shirt phenomenon’—the smart casual shirt that can be quickly thrown on for a video meeting. Ultimately, there is something inherently odd about dressing up in a suit and tie to sit at home and talk through a computer.
It’s questionable whether grandstanding ever has a place in ADR, but it is particularly ineffective in the virtual world. Measured, reasonable negotiation is more effective than attempts at Rumpole-style advocacy. A further benefit of virtual ADR seems to be that having made the effort to arrange it during lockdown, and (hopefully) considered their positions carefully in advance, parties arrive eager to progress matters and ‘cut to the chase’.
When and if we emerge into whatever the ‘new normal’ proves to be, it will be worth remembering our experiences of virtual ADR. In many (and probably most) cases it will be better to return to in person negotiating with the advantages of more personal interaction and the ability to pick up body language cues and more easily ‘read the room’ that they bring. However, in some cases virtual ADR (in whole or in part) may still be preferable—such as where there are difficulties in travelling or parties (such as claimants with a psychiatric difficulty) who will feel more comfortable participating from familiar surroundings.
This analysis was first published on Lexis®PSL PI & Clinical Negligence on 8 September 2020.
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