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KDL Law trials online mediation during lockdown

2nd June 2020

Mediation has long been seen as an effective alternative dispute resolution (ADR) method for parties to litigation, to resolve their differences and reach settlement. As with Court and Tribunal hearings, face-to-face mediations have not been possible during the early days of lockdown, however mediators (and lawyers alike) have had to adapt to these strange times and new ways of working so that these ADR methods are still available to parties willing to explore ways to resolve their disputes outside of litigation.

Part of this new way of working is a move towards mediation online, which is increasingly being seen as the future of mediation. KDL Law has had the opportunity to trial an online mediation for a client during lockdown, and we thought it would be helpful to share are experience with you.

What is mediation?

For those not familiar with mediation, the process is relatively straight forward. A trained mediator will work with the parties to any given dispute, to help them work through their dispute and facilitate a settlement. The mediator is not a judge and will not make any findings or decisions on the dispute. The mediator is there purely in a facilitative capacity, and the input of an ‘outside voice’ is often helpful for the parties to see their positions differently and make some headway in otherwise entrenched positions in the dispute and views on settlement. The process is voluntary, confidential and ‘without prejudice’ meaning that discussions held cannot be brought to the attention of the Court, if the case does not settle and litigation continues.

Each mediation is dealt with differently and the benefit of it being a ‘non-Court’ based process means that there is flexibility in terms of how the parties wish for the mediation to be dealt with, and how the mediator thinks it would be most effective. In most cases, however, the mediation will take place at an agreed location on an agreed date, and the parties will spend the majority of the time in separate ‘breakout’ rooms with their respective advisors (albeit in the same venue), with the mediator spending time between the parties in their breakout rooms to help the parties negotiate a settlement that both sides are happy with. In appropriate cases, there may be an ‘open’ session, with all parties and participants to the mediation spending a session together. That may be by way of an introduction right at the outset, or at some later part of the mediation, where it is thought helpful to have the parties face-to-face in an open session.

How does online mediation work?

The mediation that we dealt with was through the ‘Zoom’ video conferencing platform, which many of you will no doubt be used to by now.

The process was surprisingly similar to a face-to-face mediation, albeit all participants were in the relative comfort of their own homes, sat in front of a laptop or other device. The parties had separate, virtual ‘breakout’ rooms with their advisors, one for the Claimant side and one for the Defendant. The mediator would leave one virtual ‘breakout’ room to spend time with the other party, and if we wished to spend time with our client for confidential discussions or advice without the mediator, the mediator could easily exclude herself from the room and return when we were ready to talk again. The mediator could organise a number of separate ‘breakout’ rooms, for example just for the lawyers on each side to spend time in discussions without their clients, to discuss specific legal points that did not necessarily need to involve the clients.

The mediator would contact us either by phone or text message for updates or before coming back into a confidential discussion, which replaced the courtesy of a traditional knock on the door.

We had a separate ‘WhatsApp’ group with all participants on our side, which meant that we could keep the others updated if the lawyers were in long discussions, or simply if the mediator was spending time with the other party and there were no updates to report. This meant that the other participants could spend time away from their screens (the screens being switched off and muted) for parts of the day, until a WhatsApp message was sent to the group with notice when everybody would be needed back.

How effective is online mediation?

Online mediation has a number of obvious advantages. Each of the parties and their representatives could participate from their respective locations and there was no need for everyone to travel to a common location. This is especially helpful where, as is commonly the case, the mediation runs late into the evening. The ‘virtual’ nature of online mediation will mean that there is no limit in terms of the number of participants, or indeed their location. This will in turn achieve costs savings in terms of travel expenses or expenses for overnight accommodation, where appropriate.

As with any face-to-face mediation, there were parts of the day where there was a perception of little progress, for example when the mediator was spending time in confidential discussions with our opponent. However, this was no different to any face-to-face mediation. Being able to switch off the screen for periods of time during the day was therefore helpful, and meant that the other participants, whilst making themselves available for the day, did not have to be physically present in front of the screen for the whole day.

Key to the smooth running of the day was communication - between us and the mediator, and us and the participants on the side of our client - and we found that the WhatsApp group worked well for keeping everyone updated.

We didn’t feel that the mediation could have worked any better if it were face-to-face, and the ‘virtual’ feel of the mediation did not make it any less effective in terms of offers being made and negotiated.

Not all disputes will be the same and it may be that the need to ‘look into the eyes’ of the opponent will be what’s needed for the parties to see past their differences and agree settlement. However, an ‘open’ session with all participants can work just as effectively and the impact of any non-verbal communication will be felt just as well through video, in the right types of cases.

If you have any questions whatsoever or are interested in exploring online mediation to resolve your dispute, please do get in touch.

By Faye Didcote

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