Covid-19 accelerates the move towards remote mediation

The Covid-19 pandemic has profoundly changed our lives and forced us all into a ‘new normal’. The legal system is no exception. The Courts will be piloting remote hearings from the third week in April, ICT infrastructure updates already under way have been accelerated to allow the administration of justice to continue during the emergency.

The acceleration of these schemes is welcome news as we’ve seen how in Australia and the UK, among others, e-filing, can increase speed and efficiency when it comes to litigation. The emergency has also made a very strong case for remote mediation.

With court hearings significantly reduced and an increase in employment, contract and liquidity-related concerns for businesses, lawyers need to find ways to engage with their clients, each-other, and those empowered to adjudicate, to resolve disputes in an effective manner, while adhering to the necessary social distancing measures.

The case for remote mediation

On the face of it, mediation is easily transferable to a remote situation. No Court officials are required, simply the parties involved, their legal advisors and a mediator. Most video-conferencing facilities offer solutions that allow mediations to happen in a ‘business-as-usual’ manner.

Most video-conferencing apps allow the organiser to set up rooms or channels so that parties can have private conversations away from the wider group. Chat functionality is also standard so you can message your client or the mediator while in the meeting. Documents can easily be shared with all parties via One Drive, Google Docs or even email. In fact, remote mediation has much in it’s favour in terms of time and cost savings, even pre-Covid-19.

Possible hurdles

One of the key advantages of mediation, besides removing costly litigation procedures, is that taking a day or half day out in a location that is set up specifically to encourage parties to work together, can often lead to a favourable resolution for all those involved, that may not have been possible in a courtroom setting. Those of us who are involved with Mediation understand the importance of the setting and environment being right, even in terms of who sits where in the room.

With online mediation, the ability to create a comfortable environment and to empathise with the parties face-to-face is gone, and as they say, only 7% of communication is verbal. Empathy and the ability to gain trust are key skills for mediators and this can be tricky to do when you’re not in the same room as the parties involved. But a good, well-organised mediator can circumvent these issues.

Key steps to ensure effective remote mediation

• The process call: On appointment, the mediator should arrange a process call. During this call, the mediator will take the parties or their lawyers through the entire mediation process, setting out what is required of them, what documentation he/she wants to review by way of position papers/background information, and set timelines and a date for the mediation. This happens with all mediation, but in the remote situation, it is a crucial step so as to allow a smoother and more effective mediation on the day. Going through the app being used to host the session and how each party can access the meeting, will be an important part of this call.
• The agenda: Following the process call, the mediator can share a detailed agenda for the mediation session. Again, in the remote situation, this will likely contain more detail than in the case of a face-to-face meeting. The agenda should set out exactly how each party and their legal advisors can access the meeting, their private ‘rooms’ within the meeting (This functionality is widely available on the majority of video conferencing apps).
• Rules of engagement for the mediation: As part of the agenda, the mediator can distribute some rules of engagement for the mediation session itself. These could include instructions on how to private-message the mediator, protocol for making a verbal contribution during the session (hand-raising, for example) etc. These will be key in ensuring that the session runs in an orderly fashion.
• The role of the mediator: We’ve all had a crash-course in video conferencing over the last few weeks, and we’ve seen the importance of having a meeting lead. The mediator, just as in the case of face-to-face meetings, will lead the remote mediation, in terms of allowing participants admission, ensuring the session follows the agenda, rules of engagement are adhered to etc.
• Knowledge of the apps/tech involved: We’ve seen first-hand, that spending time familiarising a client who’s not comfortable with the apps or tech involved in the process, can save everyone time and is more likely to lead to a favourable outcome.
• Virtual signatures: Ensure you have online signature software like Docusign to hand, again, this will save time.

About the author: Marc Fitzgibbon, Senior Partner and Head of Employment Law at Lavelle Partners.