The last year
Since March 2020, our mediators have conducted over 500 mediations online. We have seen that the percentage of cases which have been resolved by online mediation is the same as we experienced in previous years from traditional mediations. We have successfully mediated multi-party disputes with parties in different countries and time zones, as well as those using different platforms. The range of disputes is no less diverse from that we experienced in previous years with conventional mediations.
In a survey of our users[1] in May / June 2020, 96% of those who has already taken part in online mediation said they would do so again and 82% of those who had not yet taken part in online mediation said they would be prepared to do so. These numbers changed when the choice of in-person mediation was available, with only 28% being prepared to mediate online if it were possible to mediate in-person.
Online mediation – the good, the bad and the ugly
Not to state the obvious but in the last year without videoconferencing mediation would not have been possible. We have found that there were both pros and cons to online mediation.
Pros
- The saving in terms of costs of travel, hotel and attendances are obvious. Carbon footprint, air traffic pollution and concern for the environment generally is likely to influence future commercial relations in general. One multi-party mediation alone estimated 60 hours of travel time saved across attendees.
- People are more relaxed in their own home / work environment (but this can also be a disadvantage).
- Pre-mediation contact via video conference has proved to be invaluable and led to more in-depth dialogue at the mediation starting sooner.
- It plays to the strengths of mediation which are its flexibility and the scope for creativity. It allows for an even greater flexibility in the process with pre-meetings, post-meetings and mediations split over half days to allow for time zone differences in international mediations.
- It makes UK mediators more available internationally.
- It increases the types and nature of disputes which may be considered for mediation, those earlier in the life cycle of a dispute, the negotiation of a contract or ongoing dialogue in a commercial setting and more protracted disputes where organising multiple in-person meetings would have been a barrier.
- The ability to work productively on other matters whilst in your own workspace and generally the more productive use of the downtime is a tangible advantage for busy practitioners as well as their clients.
Cons
- Technical issues, especially if the parties are using different platforms, and lack of access to reliable technology.
- The absence of physical presence means the loss of small talk, the quick word in the corridor, the building of rapport.
- Working to a screen for long periods can be more wearing and exhausting then being in-person.
- Confidentiality issues, is there anyone off camera who can hear what is being said but cannot be seen?
The rise of the hybrid
As lockdown measures in the UK ease, we are starting to see an increase in the number of enquiries for in-person mediation and for hybrid mediations. Hybrid being where one party may have some participants online and some together in one venue or all one party together in a venue and another online. This raises questions for a mediator and for the parties. The aim is to make the best of both worlds rather than the worst. Some points to consider.
- Will insurers / experts / counsel who may only be needed for a portion of the mediation still be willing travel to a venue for a day or could they attend online?
- Consider the dynamics, do you want the key decision maker online if others are in-person?
- Consideration would need to be given if it were proposed that one party be in-person with the mediator and the other online. The mediator can guide the parties on this. Ensuring all are comfortable with the arrangements and that the mediator is managing all aspects while maintaining the neutrality which courses through the veins of a mediator.
- It increases access to mediation. While international travel restrictions are in place it means attendees from all over the world can still be involved. Those who need to isolate can still take part.
- Greater consideration needs to be given to the technology if some are online and some in-person. If one group of people is together in a conference room with one camera and screen how well can individual faces and expressions be seen? Could all attendees have a laptop with the sound on mute so their faces can be seen?
- Could parties face sanctions for refusing to attend in-person or online? With the options of in-person, online and hybrid there may be little reason to refuse on these grounds. This was the subject of an article published by one of our mediators examining whether it is time for a new Halsey[2]? Perhaps the answer is ‘no’, but the principles are equally applicable to online mediation. Recent statements by senior judiciary, including the Master of the Rolls, suggest that the courts will be less than accommodating for delayed civil trials because of an unwillingness to mediate virtually.
Conclusion
During his address at LIDW21 Robert Buckland QC stated: “When it comes to resolving disputes, the court is rarely the best option, let’s be frank about it. Despite this, parties regularly resort to litigation when simpler and faster alternatives such as mediation and conciliation exist.” He said mediation “should no longer be seen as ‘alternative’ but as integral to our justice system,” with consultation due to take place “to deliver a justice system…that is more accessible than any other jurisdiction on this planet.” Mediation is being championed by the judiciary and the sector needs to be able to deliver.
This blog was written by Nicky Doble, CEO of Independent Mediators, a sponsor of LIDW21.
[1] Independent Mediators Online Mediation Survey Results – July 2020. Independent Mediators – Online Mediation Survey Results – July 2020 – Independent Mediators
[2] ‘Is this the time for new Halsey,’ Michel Kallipetis QC. Is this the time for a new Halsey? – Independent Mediators