Out-Law Analysis | 24 May 2021 | 9:32 am | 7 min. read
There will undoubtedly always be cases where meeting in person remains an important element in resolving a dispute, particularly during mediation where interpersonal relationships often contribute to successful outcomes. However, access to platforms which support remote and virtual dispute resolution procedures will provide a cost effective alternative for many in the current economic climate, and may appeal to businesses seeking to reduce their carbon footprint where mediating in person would require international travel.
We are already seeing remote mediation evolve as both mediators and parties to successful mediation learn from their experiences since the outbreak of the pandemic, and we expect this to continue. However, the convenience alone of virtual platforms should not dictate their use, and litigants will be looking to their legal counsel to advise them on the appropriate format for dispute resolution forums relevant to their specific case.
Mediation is a central feature of dispute resolution. A well-implemented mediation can bring an end to longstanding disputes, avoiding the uncertainty of an errant adjudication decision, arbitral aware or court judgment in a cost effective manner. Mediation can cut through entrenched positions and encourage parties and their legal advisers to take a step back and focus on their ultimate goals, and may allow for the continuation of business relationships that have otherwise disintegrated.
Over the past year, parties, solicitors and mediators took to online remote mediation by necessity, and often in place of already-planned in-person mediations. Despite some initial concerns and scepticism – particularly around privacy and security, suitable conferencing platforms and the likely effectiveness of any remote mediation – the uptake in remote mediation since has been impressive. Indeed, mediators have observed that despite their anticipation of a rather quiet year, what has actually transpired has been the opposite.
Initially, parties generally defaulted to the traditional structure of a mediation day, only hosted on an online platform or platforms. This often involved the standard opening plenary session, followed by the mediator ‘shuttling’ between the parties in their own virtual breakout meeting rooms until a settlement was reached, or not. However, remote mediations have evolved considerably over the past year, and are continuing to do so.
On the pulse mediators have been quick to issue updated terms and conditions, revised mediation agreements and protocols for dealing with remote mediations. They have also been able to get quickly up to speed with some of the available technologies, allowing them to help guide parties through the process.
Although preparatory groundwork is already a feature of many successful mediations, mediators are required to do more of this in advance of remote mediations – reading papers, understanding the issues and speaking with the parties to understand their aims and needs. Additionally, mediators are now more often staying involved with mediations after the ‘mediation day’ itself has ended, with ongoing follow-ups and shuttling between the parties on issues and potential settlement deals.
These factors are impacting the parties’ choice of mediator. As well as reviewing a mediator’s general credentials and specialist knowledge in a particular area, parties should also be considering the mediator’s proactiveness in advance of the mediation day, their confidence with the technology, their ability to actively facilitate the mediation process, and their effectiveness in following up and driving parties towards a settlement.
A shift away from the traditional assumption that mediation should be a one-day event had already begun to take place prior to 2020, with efficiencies and alternative ways of conducting mediation beginning to emerge.
In some instances, this has taken the form of a series of shorter mediations, spreading over a few days. Dispensing with the opening plenary session with the mediator instead conducting ‘pre-meets’ with each party before then ‘shuttling’ between the parties now occurs, sometimes over the course of days or weeks, to try to reach a deal. This can offer greater scheduling flexibility and be less cumbersome for busy professionals than the traditional mediation taking place in person over a long single day. This can also sometimes mean that mediations can be arranged, and so disputes be resolved, at an earlier stage than would otherwise have been the case.
Fully remote mediation has in some instances been replaced with ‘hybrid’ mediation, coupling in-person appearances with remote appearances. For example, one team might gather together so that they can strategise face to face, but communications with the mediator and other party take place remotely. We are likely to continue to see this, particularly where geographical restrictions apply or due to personal preferences. Questions can arise as to how to achieve a level playing field, and these need to be considered and navigated with care.
Finding the right technology with which to conduct a virtual mediation remains an issue, although this is improving. Existing platforms have introduced enhancements since the early days of the first lockdown – including increased security features; greater provision of ‘breakout’ rooms; participant ‘hand-raising’; and the ability to rearrange participants in gallery view so parties can be usefully grouped.
However, the technology is still not always altogether smooth. For example, some participants are prohibited from using certain platforms due to company information security policies, which can cause problems where a mediator has a preference or requirement for that platform to be used. While it is workable, and relatively common, for different participants in a mediation to use different platforms for their private ‘rooms’, mediation tends to proceed more smoothly if all participants are using different rooms within the same platform. We may see the development or growth of new or improved platforms tailored more closely to the requirements of mediation. Such platforms could also be adapted to other forms of ADR.
Whatever technology is used, the mediator must be in control of, and confident and comfortable with, the chosen platform if the mediation is to be truly effective. Background interruptions from children, pets and postmen remain rife during mediation, along with the usual technical difficulties which can kill momentum. While all of these issues can be addressed – for example, by switching to a backup technology option pre-trialled by the parties – they are not ideal.
There are also benefits of in-person mediation which cannot easily be replicated in an online format, including being able to observe participants’ non-verbal communication and ‘in passing’ interactions. This can be addressed to some extent by insisting that participants keep their cameras on at all times, but seeing faces in boxes on a screen is not the same as in-person physical interaction.
Now that more mediations are taking place remotely, it is becoming a more attractive option in cross-border disputes as it avoids the need for participants to travel. After being shown to be effective, we envisage that remote mediation will continue to be a feature of international dispute resolution even once travel restrictions are lifted. Not only is it more convenient and less costly for parties, but as pressure grows for businesses to consider climate change, they are likely to question more often whether the benefits of an in-person mediation outweigh the impact on their carbon footprint of international travel.
Indeed, mediators may begin to suggest remote mediation solely for reasons connected to climate change. A number of mediators have now signed the Mediators’ Green Pledge committing them, among other things, to encouraging parties to consider the necessity of participants attending mediation in person if that would involve significant unnecessary travel.
Remote mediation may not be appropriate for larger, more complex mediations involving multiple parties and experts across various jurisdictions and time zones – however, with detailed planning in advance and implementation of protocols, alongside the technological advances seen over the past year, such a mediation is not impossible.
As parties become more creative about the way remote mediation is used, we may see further innovation.
One quick, cost effective option, which may be attractive to businesses for certain disputes in the current climate, is a stripped back, ‘bare essentials’ form of mediation involving blind bidding. This dispenses with many ‘traditional’ features of mediation such as position papers, plenary sessions and one-to-one meetings with the parties in favour of email and a pre-agreed number, usually three, of ‘bidding’ rounds.
The parties appoint a mediator as usual and issue their confidential bids in round one directly to the mediator. If there is a match, the figure is revealed and the process ends once a settlement is executed. If there is no match on the figures, the parties proceed to round two. If there is still no agreement, in round three the mediator will either announce a match or confirm whether the parties are within a specified range. Even where no resolution is ultimately reached, parties should emerge from the process with enough momentum and impetus to move on to a more formal mediation process to finalise the issues between them.
Blind bidding mediation is particularly useful for pure money disputes – for example a traditional final account dispute in a construction contract, or a dispute over costs. However, in principle, bidding rounds could also relate to offers to remediate a defect for example, as opposed to money offers.
In more complex disputes, involving difficult technical issues and numerous legal debates, parties may still prefer more traditional mediations. Parties may also struggle to come up with settlement figures in a vacuum, although facing such questions will force businesses to focus on what they genuinely want and need in order to settle the dispute. Uptake of this idea will also depend on whether courts will regard the process as sufficient for a party to avoid the cost consequences of refusing to mediate.
Co-written by Emilie Jones of Pinsent Masons.
03 Jul 2020