Remote mediation in civil litigation: Does it really work?

9 April 2020

The legal profession is increasingly reliant on technology, and never more so than during the COVID-19 pandemic. Many clients are wondering what impact the restrictions on our movement will have on their upcoming mediations. 

The answer (as ever) depends on the case and the particular client’s needs. However, in principle there is no reason why mediation needs to be postponed simply because the parties cannot meet in a single location. For some time now, clients have chosen a remote mediation in certain circumstances, for example in international disputes which would otherwise incur significant travel time and costs. 

How does remote mediation work?

The parties are not in the same physical location so they need to communicate by telephone or on a video conferencing platform. Sophisticated software already exists for this purpose and can be made easily accessible to the parties. It allows multiple people and parties to “attend” the mediation at the same time. Members of each team do not need to gather in one location; they can join the mediation from their own homes or offices.

The remote mediation experience is designed to mimic the face to face mediation as far as possible. The mediator will circulate the details of the remote mediation to all parties, with instructions on how to join. All parties “arrive” at the mediation at the designated time. They are greeted by the mediator and placed into a breakout room with their team, just as you would see in a physical mediation. The mediator has control over who is in each room and can come and go between the breakout rooms just as he or she would in a physical location. The mediator can also choose to bring the parties together at certain points throughout the day to aid the discussions.

 

What are the key benefits of remote mediation?

  1. Flexibility. The parties have much more freedom to “meet” at a time. If an issue crops up during the course of the mediation that needs to be resolved by just one of the parties, the other parties can easily leave the mediation and re-join later.
  1. Cost. A remote mediation saves on the costs of travel, booking meeting rooms and refreshments. In some cases, remote mediations can be quicker than face to face meetings as parties move through the background issues more quickly.

 

What are the key challenges with remote mediation?

  1. Internet connection/equipment. The video conferencing platforms rely on each person attending the mediation having an adequate Internet connection. If any party does not have access to reliable Internet, or a smartphone/laptop, a remote mediation is less likely to be successful. We recommend everybody tests their equipment and runs a rehearsal in advance of the mediation itself.
  1. Communication. It will always be difficult to replicate the style of communication parties can achieve during a physical mediation. A video connection is preferable to audio-only, as it is easier for a speaker to communicate their meaning when they can be seen and express their body language.
  1. Recording. The mediator will ensure that any recording function in the video software is disabled. However, it is more difficult to prevent covert recording of without prejudice discussions than it would be in a face to face mediation. This is unlikely to be a risk in most cases, but it is worth considering whether the parties need to incorporate this into the mediation agreement in advance. If covert recording does take place there are potential criminal offences, including under the Regulation of Investigatory Powers Act 2000.

 

Practical tips for remote mediation

  1. Ensure that the mediator has a list of everyone who will be attending on behalf of each party, which he or she can use as a reference guide throughout the mediation.
  1. The mediator will ensure that the day is well structured. Everyone should set aside the time to focus solely on the mediation, just as you would in a physical meeting. This means that external distractions, calls and emails should be kept to a minimum. The mediator will be able to help with scheduling breaks so that parties are not left at their screens for long periods of time.
  1. Ensure all parties have the relevant email addresses so that a settlement agreement can be circulated and signed as necessary. It is usually preferable to circulate any documents over email rather than within the video conferencing platform itself.
  1. Run a rehearsal! The mediator should be able to help with this, and is likely to call each party using the preferred video software in advance anyway.

 

Should I go ahead with remote mediation?

This is ultimately up to the client and the particular circumstances of the case. However, with a skilled mediator, a good internet connection and a little rehearsal, there is no reason to postpone mediation just because it will have to take place remotely. Any party with concerns about the practicalities of remote mediation should seek guidance from the mediator or their lawyer.

 

For further information, please contact a member of our Dispute Resolution team.

 

About the author

Hannah Fitzwilliam is an associate in the Dispute Resolution team. She advises on a broad range of contentious matters involving both individuals and corporate clients. She has experience of litigation in the High Court and of settling disputes through negotiation. Hannah regularly advises on complex and high value disputes, often with a cross-border element.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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