Lockdowns and social distancing measures have caused court closures, which will increase delays where there are already backlogs. Further disputes involving supply-chain issues, employment disputes and other commercial matters emerging from the pandemic will further increase the backlog of cases.
Courts are using video conferencing technology to conduct hearings, but another way to bypass the delays is to use online alternative dispute resolution, the most common of which is mediation.
Mediation enjoys an 89% success rate. It relies on using a neutral third party through a series of joint and individual meetings with the parties involved. Telephone mediations have been conducted for some time, but modern technology with high quality video and audio enables a real-life mediation experience in a virtual setting.
In an online setting, security and confidentiality must be considered carefully, given the potential for novice users inadvertently to reveal sensitive information which is shared to a wider audience than intended.
Platform & equipment
The most important aspect to consider is end-to-end encryption of calls, and data protection policies. Platforms should be compliant with GDPR requirements and those co-ordinating the mediation should be aware of what data is collected, for what purpose and how it is stored. It is advisable that IT specialists are consulted when vetting platforms from a security perspective.
Platforms should be rigorously tested internally to ensure video and audio capability is not compromised by multiple participants and long duration calls. This is crucial given that mediations can last entire days or even several days. While most platforms are free to register and use for users, it is important to ensure that all required functionality is included in the basic package. There might be a need for the host to purchase a premium subscription.
Users should ensure that they have a strong, secure and private internet connection. The device (laptop, PC) should also be equipped with audio (speakers and microphones) and video capabilities. If such equipment is not built into the device the user might have to use external resources such as headphones and webcams.
Pre-mediation engagement between the mediator and parties is crucial in developing rapport and building confidence for the upcoming mediation. This is even more important in a virtual setting where all parties need to be confident not only with the mediator and the process but also the technology being used. In order to do this, it is best for the parties to experience for themselves how closely a face-to-face interaction can be achieved using the video conferencing software, as well as figuring out any technical issues well in advance of the mediation.
Establishing a suitable dress code in advance is important, although what this will be, will depend on the mediation.
Participants will also want to consider what their background will create the right tone for the occasion. Whilst the individual décor of a participant’s living room should not matter to the mediation, this can be a distraction if it is not reasonably neutral.
Parties should be in a separate private room during the mediation and make a commitment not to interrupt the session with external phone calls and other distractions. This is especially relevant for parties operating from their homes but will be challenging while self-isolation measures remain strict.
Document exchange should be carefully planned and considered. Timelines and processes for preparing and developing the mediation bundles should be decided. As it is likely that most documents will be exchanged electronically, advisors may find it useful to set up a shared drive where all parties can deposit their bundles.
Once the appropriate steps in the pre-mediation phase have been taken, the actual mediation should be broadly similar to a face-to-face session. Using video-conferencing software, the mediator can structure the virtual mediation just as they would one that is conducted in person. Making use of breakout rooms and other tools, allows for the same level of privacy and flexibility as would otherwise be available in a bricks and mortar setting. However, those participating should expect that the process will be more stressful than a physical mediation. Engaging with a screen for several hours and using what may be unfamiliar technology can be draining and add to tensions already inherent in the mediation itself.
If a settlement is achieved, the parties can use online solutions like DocuSign to sign and formalise the agreement in real-time.
If you have any questions regarding online mediation or any other form of dispute resolution, then please do not hesitate to contact us at [email protected]andco.co.uk.
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Justin deals with all aspects of Dispute Resolution for both businesses and individuals, including including Contentious Probate, Employment Law ( for both businesses and individuals) and Commercial Litigation. This means that he is familiar with the many different courts and tribunal as well as the many different methods for resolving disputes, including alternative dispute resolution such as adjudication and mediation.