Getting the properly authorised parties physically into one place for mediation and having face-to-face contact with the mediator and the other parties is a big part of most mediation practice. But this traditional approach is going to be increasingly difficult for some time to come.
Initially, parties may hesitate to go online to resolve commercial disputes however I am confident that I can continue to make mediation work for counsel and parties in these difficult times. I am happy to answer any questions or provide a tour of the online tools we use for mediation.
Because, as we settle into the new normal and with in-person dispute resolution on hold for some time to come, online mediation is one of the few dispute resolution channels remaining to keep commercial disputes moving and much success has already been had.
My aim is to help lawyers and clients transition from in-person to online mediations during 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 the lockdown. 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.
Broadly, parties meet in a virtual main room for joint discussions and move to secure 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 for confidential discussions and bring people together as needed as well as sharing a whiteboard or documents as we would normally.
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, my experience is that very quickly parties forget about the technology and put energy into resolution as they do normally.
“Due to the current pandemic situation, my client was in the Philippines and the complainant was in London and the mediator was from New Zealand.
Had it been a normal situation, certainly I would not have got the opportunity to represent my client as it would have involved a huge cost and expense to my client to call me from India. However, the online platform Zoom made it possible. Similarly, the complainant’s counsel was from Nigeria.
Though I was conducting online arbitration proceedings both as an arbitrator and as a counsel, I was not sure about online mediation. However, after today’s experience, I think that online mediation will eventually become part of the normal process… I am sure that it will certainly be helpful for ADR practitioners around the world to get more opportunities”
Sameer Shah, Ahmedabad, Gujarat, India (April 2020)
So, what are the options?
I usually use Zoom as the most widely accepted online alternative to in-person mediation (https://zoom.us) however I am happy to use whatever platform is preferred by the parties. Of course, from a process point of view, we do things slightly differently online and I will talk to counsel and clients about what that means. For the moment, please see online tips below;
Parties can meet all together in the main room and have their secure private rooms with unlimited further rooms available for other combinations of lawyers or experts etc. As a mediator, I can move easily between rooms and bring people together as needed as well as sharing a whiteboard or documents as we would normally.
Worried about security?
Lawyers and parties to mediation are right to be concerned about the security of online platforms for their confidential mediations. There is a lot of noise around this issue – one of the more balanced commentaries is from expert Simon Boehme Zoom is Safe for Lawyers (if you use it right)
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 a preferred online platform, documentation, attendees etc) to be agreed. This email will also include my Online Mediation Agreement together with my Engagement Terms.
Preliminary Telephone/Video Meeting – it will be useful for all counsel to jointly meet with me by video conference soon after my appointment to discuss technical and process matters. On this call, we can discuss the most appropriate online platform, timetable the documentation exchange (bundle and position statements), discuss the structure of the mediation, identify attendees etc.
Agreement to Mediate/Confidentiality & Conduct Undertaking – to be signed by the all parties with the Confidentiality & Conduct Undertaking signed by all those attending the mediation (including counsel). Fully signed copy to be circulated by each party.
Joining Instructions – once appointed and we have landed a date and signed the agreement I will send an invitation to counsel containing a unique link to access the mediation. Counsel will then circulate this joining information to their team. These details are confidential to those attending.
Orientation/Troubleshooting – a practice session on the online platform and equipment/connection test for each counsel (and client if you wish) at least a week before the mediation.
Day Before Call – I will usually call counsel shortly before mediation day for a confidential discussion.
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 email for a copy.
Meanwhile, take a look at my Zoom Quick Read
The Practice Session
My standard process includes a Practice 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 go through how we share documents or use the whiteboard and other useful tools – I aim to have lawyers and clients able to focus on the dispute and leave me to do the tech at my end.
If you are not familiar with it, I suggest you put in a Zoom call with family or friends or you can join a test call here.
You can also find useful Zoom tutorials are here.
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.
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. Mediation can help with this.