Remote Mediation: The New Normal and the Future
Elaine Palser explores the advantages (which are considerable) and the disadvantages (which are surmountable) of remote mediation and considers what the future holds for settling cases.
Remote mediation works
Before I took part in my first remote mediation I was sceptical. I was convinced that it would be inferior to in-person mediation. To my surprise, it worked extremely well. In fact, I came away wondering if remote mediation was better than in-person mediation. Many others have also had remarkably positive experiences of remote mediation.
Mediation is a very successful means of settling cases. According to the CEDR mediation audit 2018, 89% of cases settle through mediation; 74% at the mediation itself and 15% shortly thereafter. The fact that remote mediation works so well is therefore incredibly good news as it means that during the pandemic we can still help clients successfully settle cases. But even once we are through the pandemic I expect that remote mediation will remain popular, and even become the preferred choice.
How to mediate remotely
You will need a video-conferencing facility which has breakout rooms, e.g. Zoom. It is quick and easy to text the mediator to ask him/her to return to your room, or for the mediator to do the same when ready to return. A screen-sharing facility can also be helpful when tweaking provisions of the settlement agreement or looking at documents.
You may want an e-signature facility if signing and scanning the settlement agreement may be difficult for the parties. The mediator will often handle this aspect.
Two screens are advisable (e.g. a laptop and an Ipad); one for your electronic bundle and one for mediating.
Advantages of Remote Mediation
The advantages are considerable and even after the pandemic you will want to consider your client’s circumstances to determine if remote mediation is the preferred option.
- Location. The parties and their lawyers can be anywhere in the world and still mediate, with no extra time, travel and accommodation costs.
- Age and infirmity. The elderly and infirm may not be up to travelling to a mediation venue, and they may not want to expose themselves to Covid-19 or indeed any other viruses.
- In-person mediation is geared towards the extrovert; it is full-on, people are around you for hours on end in a relatively small space, and there is little chance of escape. Remote mediation is less stressful if you are an introvert.
- There are plenty of swish mediation venues, but being at home can be more comfortable, less stressful, and more conducive to getting a deal. It is easy to take a break, sit in the garden, or go for a stroll. You can even have your pet with you and the therapeutic benefits of that for some clients should not be under-rated.
- A client can have a partner nearby to give support while also not having to worry about who will look after the children during a potentially lengthy mediation.
- It saves time for the parties, the lawyers, and the mediators.
- It saves travel costs for everyone, venue costs, lunch costs, and accommodation costs. The mediator and lawyer fees may also be less as travel is removed.
Challenges posed by the Remote Process
The challenges are small and surmountable.
- Body language. The mediator has to build a rapport with the parties and come to understand their desires and concerns to get to a deal. This can be slightly harder remotely, but having video makes it vastly superior to mediation by telephone.
- Video of yourself. This can be a distraction but one gets used to it.
- Screens are tiring. So is in-person mediation. One can and should take breaks.
- Quitting. If emotions run very high it is easier for a party to click “leave meeting” than it is to walk away from a room of people. It is also not possible for anyone to follow the party to persuade him/her to continue the mediation. A good mediator will manage very high emotions, and quitting is only likely to happen very rarely.
Challenges posed by Covid-19
These challenges are also surmountable and may be short lived.
- Disclosure and witness statements. It may not be possible physically to locate all the files to achieve full disclosure, and it may not be possible to obtain all the witness evidence (because one cannot meet with a witness or go through the documents), but mediation is not about having every fact, document, and argument lined up.
- Expert evidence. A few weeks ago it would have been difficult to obtain a property valuation. This will be easier now, but commercial properties are still likely to pose some difficulties; they might be shut, tenants might not be paying rent, and there are likely to be few reliable comparables. If the court has delayed the timetable for expert evidence or does do so because of the pandemic, this could mean parties are reluctant to mediate, but it may be possible to rely on historic valuations, drive-by valuations, or Zoopla for an adequate indication of value for settlement purposes.
- A few weeks ago it would have been difficult to sell a property, and this may have put parties off mediating if realisation of any settlement would not have been imminent. The property market may still be sluggish but properties can still sell.
- Check that you and your clients can use the software and breakout rooms ahead of time.
- Draft your settlement agreement variations and draft order ahead of time.
- Do a risk analysis of the merits.
- Consider the costs implications of not settling.
- Consider the vulnerability of the other side and how this might affect settlement.
The Future of Mediation
As a result of the many legal issues thrown up by the pandemic (such as frustration, force majeure, breach of contract, landlord and tenant, and insolvency), it is conceivable that an avalanche of cases is coming and that the courts will not be able to cope. There are already delays, with some cases having already been adjourned. In these unprecedented times, there will also be a greater risk that the other side will not be solvent by the time of trial. This may encourage more parties to get on with mediation.
The courts have long said they will not force parties to mediate: Halsey v Milton Keynes General NHS Trust. This may change if the courts are inundated. The courts can, however, order an early neutral evaluation even if the parties do not want it: Lomax v Lomax. It is possible that this will be used more in the future, but I would opt for mediation, where the parties have greater control and there is less fixation on merits.
Given the likely court delay and avalanche of new cases – but most importantly given how well remote mediation works and how well it may suit the circumstances of so many parties – I expect remote mediation to continue to play a big role in the lives of lawyers and their clients in the months to come. It is both the new normal and the future.
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Elaine Palser is a barrister specialising in contentious probate and trusts, insolvency, commercial disputes, and professional negligence. She is also a CEDR-accredited mediator.
Barristers: Elaine Palser
Categories: Covid-19 | Legal Blog & Publications | Mediation