Getting the properly authorised parties physically into one place is a big part of mediation. But this traditional approach is increasingly difficult in these COVID times.
My aim is to help lawyers and their clients transition from in-person to online mediations during and after the COVID restrictions. Just about anything I can do in an in-person mediation, I can do virtually on one of the available video conferencing platforms. Business is already successfully resolving disputes by mediation online during COVID and that is set to continue even as we learn to live with it. Most of the technology is managed at my end as host and it is relatively straightforward for lawyers and clients to familiarise themselves with the software – and I always offer a practice session to try out the tech before the mediation.
Broadly, parties meet in a virtual main room for joint discussions and move to secure virtual breakout rooms for confidential discussions between themselves and/or the mediator, moving in and out of the joint and breakout as needed. As a mediator, I can move easily between rooms and bring people together as needed as well as onscreen sharing of whiteboards or documents.
My experience is that lawyers and clients quickly get comfortable with the technology and focus on the dispute. While from a process point of view we do things slightly differently online, parties tend to forget about the technology and put their energies into resolution as they do normally.
I will discuss with counsel how best the mediation can be configured online – my preference is to have everyone on their own device so that we do not have a number of people on the one screen (like in a conference room) making it difficult to see and hear for other participants. Nevertheless, it is possible for counsel and clients to be in the same room if they wish, but using individual devices so that we optimise the visual and audio aspects of the mediation for everyone.
I use Zoom as the most widely accepted online mediation platform (https://zoom.us).
My usual online intake process is;
Initial Email – once my appointment has been agreed, I will send an e-mail to all counsel involved in the mediation confirming my appointment and listing several preliminary matters (such as documentation, attendees etc) to be agreed. This email will also include my Online Mediation Agreement together with my Engagement Terms.
Private Meetings and Tech Rehearsal With Each Party And Legal Advisors – after logistics are agreed and I have received briefing papers (bundle of relevant documents and mediation statements/position papers) I meet privately with each party and their legal advisors on Zoom to discuss the dispute and practice the technology used during the mediation.
Online Mediation Agreement/Confidentiality & Conduct Undertaking – this is to be signed by the parties plus the Confidentiality & Conduct Undertaking to be signed by all those attending the mediation (including counsel). A fully signed copy will be circulated prior to mediation day.
Joining Instructions for the Joint Meeting – I will send an invitation to counsel containing a unique Zoom link to access the mediation who can then circulate this joining information to their team. These details are confidential to those attending.
I have a detailed guide on the technical and process aspects of online mediation to assist lawyers and their clients to transition online – together with quick reads on setting up/using Zoom as well as communicating online. Please take a look at my Zoom Quick Read and this participant guide to Zoom mediation.
The Practice Session
As above, my standard process includes a session before the mediation to make sure users are comfortable with Zoom. We can practice moving in and out of private breakout rooms, look at how the security works and experience other functions useful in mediation. I will also demonstrate how we share documents or use the whiteboard – with the aim that lawyers and clients are able to focus on the dispute and leave me to do the tech at my end.
A few tips when you are online
* One person speaks at a time. Allow the mediator to moderate the conversation – and remember there is a one second lag so it is especially important to allow each participant to finish before responding.
*Keep your mediation team as small if you can – with only the essential people online.
* Your face should be well lit. That usually means any light source should be in front of you rather than behind you. Your face should take up no more than one-third of the screen. We do loose body cues when we are mediating online so seeing faces becomes even more important. A good article on improving communication during a video conference is here.
* Mute as a habit. Get used to muting so you can cough, clear your throat, and avoid unexpected background noise like a blaring siren.
* Agendas and visual aids help when people are not in the same room. Zoom has a screen sharing button so we can easily share documents.
* Make the best use of written material – it is likely that rather more weight will fall on the written argument than it does in a typical mediation. Use your mediation position paper to provide a clear road-map of the key issues and how you approach them.
*In particular, avoid the temptation to shoehorn a mass of material of secondary importance into your position paper.
*Give careful thought to which parts of the argument will require oral presentation or expansion, and how you are going to do that.
*In an online mediation time is at a premium. Remote communication has less impact and less subtlety than face-to-face communication.
I am a signatory to the World Mediators Alliance on Climate Change Green Pledge. I have committed to minimising the environmental impact of each mediation in which I am involved, including avoiding unnecessary travel and using electronic technology wherever possible.
Even as in-person dispute resolution comes back on stream, we will discover that the law is not well designed to deal with national and global shutdowns and the knock-on effects we are experiencing. The absence of a clear legal pathway where no one is at fault makes it difficult to accurately advise clients and well-represented parties will keep control of their disputes and negotiate bespoke outcomes. Online mediation can help with this.