Out-Law Guide | 03 Jul 2020 | 5:13 pm | 9 min. read
Remote or virtual mediations have generally worked well in terms of technology, logistics and ability to engage with the other side, despite some initial scepticism about whether the benefits of mediation could be achieved without participants being face to face. If a remote mediation is properly prepared and conducted, in most cases there is no reason why it should not be as effective and successful a means of resolving a dispute as a traditional mediation.
Despite restrictions beginning to ease, remote mediations are likely to remain a feature of alternative dispute resolution for some time. They may even continue to play a role after the current crisis - for example, where parties are in different parts of the world.
Mediation is a key feature of commercial dispute resolution. A large proportion of commercial disputes proceed to mediation, and success rates are high. Parties who refuse to mediate without good reason can face costs sanctions in any court proceedings.
Mediating remotely can take some of the ‘heat’ out of mediation, encouraging parties to take a more tempered approach to the discussions. This in turn can increase the chances of a settlement.
A remote mediation is one conducted by video or telephone conference. This guide will focus on mediation by video conference, as this is how most remote mediations have taken place since lockdown restrictions were imposed. However, telephone can theoretically be used for mediation - and, of course, continues to be used for other, less formal types of settlement negotiations.
The first step in any mediation is to select a mediator, usually through discussion and agreement between the parties. A relevant consideration will be how much experience a particular mediator has in conducting remote mediations. It is also perhaps more important than ever that the parties trust the mediator. There is a small risk in some remote mediations that the mediator might join a party’s private ‘breakout room’ while the party is still having internal discussions, so trust in the mediator is essential.
Cost and time considerations will drive mediator choice to some extent. Some organisations are offering fixed price or short notice mediations for certain cases, particularly in the context of Covid-19 related disputes. They include the London Chamber of Arbitration and Mediation (LCAM) and the Centre for Effective Dispute Resolution (CEDR) in conjunction with the Chartered Institute of Arbitrators (CIArb). These may be attractive in some circumstances, but may limit how much choice parties have over the specific mediator.
The mediator will usually propose the platform over which to conduct the mediation; set up the mediation; send the parties joining details for any joint or 'plenary' sessions involving all parties; and suggest separate ‘breakout rooms’ for each party.
Most mediators’ preferred platform for conducting a remote mediation is Zoom. However, where parties have a preference for using a different platform - such as Microsoft Teams - in our experience, mediators are fairly relaxed about using another platform. Parties might have such a preference for information security reasons, and must satisfy themselves as to the security and privacy aspects of any platform. Functionality is also important: for example, it is preferable for platforms to be able to accommodate all participants being visible on the screen at once, to best replicate the face-to-face experience of mediation and enable the parties to gauge each others’ reactions.
It is possible for more than one platform to be used for different elements of the mediation. Plenary sessions and one party’s breakout room might be on Microsoft Teams, while another party might use Zoom for its own breakout room. The mediator will need to be provided with joining details to access each party’s breakout room at appropriate times.
Significant planning, testing and collaboration between all parties and the mediator will be necessary. Advance preparation is particularly important when conducting a mediation remotely in order to avoid problems during the actual mediation and to maximise the time available.
Preparations will generally include:
The structure of the mediation will depend on factors including the number of parties involved; the nature of the dispute; and the mediator’s style and preferences for running the mediation.
Most remote mediations are currently scheduled to last for one day. However, our experience is that remote mediations can be slower than traditional mediations, and in some cases it may be worthwhile considering spreading the mediation across two days.
Usually, a plenary session is the first main session of a mediation. This allows all parties to join the same ‘room’ and set out their opening remarks or positions. In a remote mediation, some of the impact of these plenary sessions is inevitably lost, so you may decide to dispense with these sessions or at least keep them short. This will make what is said in the position papers exchanged in advance of the mediation more important than ever.
Following any plenary session, the mediator and parties tend to break into separate ‘rooms’, which may be on separate platforms. The mediator ‘shuttles’ between these rooms to discuss each party’s positions with them at the appropriate time.
If a deal is reached, there will be time at the end of the mediation to draft a settlement agreement. The lawyers responsible for the drafting may turn off their connection to the video conference platform for a time to focus on the detail of the drafting exercise. Screen sharing can be used to discuss drafts.
Remote mediation has a number of advantages:
Remote mediation also raises some challenges, including:
Parties to a remote mediation will need to make practical preparations, including:
You should also liaise with your lawyers in relation to the other elements of this guide.
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