The New Normal Mediation: a user guide
Part 1: Introduction
Mediation will play an important role in resolving the many disputes that will follow the Covid—19 triggered recession. The flexibility of solutions that it offers mean that parties can find creative solutions faster, cheaper and wider than just a money judgment. But in the same way that business and society has and will have to adapt further as a consequence of the pandemic so too must mediation. The opportunity for clients is how to adapt to make best use of the mediation that will emerge in to the “new normal”.
Online all the time?
Mediators quickly adapted to offer mediation online. Zoom seems to be the tool of choice with the advantage of breakout rooms for private sessions but Microsoft Teams and other platforms are options: and clients like it. As they have adapted to work online the convenience of mediating from home has undoubtedly been seen as a bonus. There are reservations that a 2D meeting may mean that body language and mood may be harder to pick up and concerns about “screen fatigue” but Pandora’s box has been opened and, whilst there is certainly going to be a return to traditional in-person mediation, online will remain and become an increasingly important part of the mediation process.
It is already clear that being online has changed the nature of mediation. The traditional mediation occurred with parties being present at the same time in the same venue. Online has changed that. Elements of a mediation that took place “on the day” are now starting earlier in the process in pre-mediation engagement with each party or with members of that party’s advisors. There is an element of the “shuttle” mediation that is now taking place in this pre-mediation phase. The mediation therefore progresses without the other party (or parties) having to await the mediator’s knock on the door. Mediation is no longer limited to parties being present at the same time thus can be said to be asynchronous with parties meeting at different times. Additionally, with the exploration phase of the mediation process starting in the pre-mediation meetings it is also asymmetric, no longer taking place at the end of the process.
The flexibility and convenience offered by online mediation does mean that there are greater opportunities for the mediator to have early engagement with the parties. In part this arises because of a need to ensure that parties develop confidence in the online platform. It is essential that parties feel secure online with no concerns about privacy or confidentiality.
There are a number of benefits to earlier engagement. First, it is much more efficient for a preliminary meeting with a party to take place before any plenary or joint meetings. As well as ensuring that parties have an opportunity to see and use the functionality of the online platform, it also enables the mediator to build rapport with all the attendees not just the instructed legal team. Second, the process of exploration of the issues may take place at an earlier stage without the other parties having to wait in their private room as now happens in a traditional mediation. Consequently the mediation process commences earlier and initial feedback from mediators confirms that the mediation itself is shorter.
With the process of mediation now starting before the mediation “day” there are options for productive contact by the mediator not just with the parties collectively but with different participants. This might include a meeting with the parties’ lawyers to discuss any legal or procedural aspects of the dispute and their respective perceptions of barriers to settlement, an outline agenda should also be discussed and whether experts might be involved in the mediation itself or at a preliminary meeting. Online now means that the mediation process can and will be spread over perhaps a week with preliminary meetings taking place with the parties on separate days before they come together for the joint meeting.
A mediation process that is more flexible in the timing and content of meetings and of participants does mean there is potential to shorten the mediation process. The search for the “available date” for every participant is a major issue even in a two party mediation but especially in any complex multi-party dispute. An online meeting that avoids extensive travel time will open up options for attendees with busy diaries. The flexibility and time saving that arises from drawing the exploration phase presently conducted on the mediation day in to the preliminary meetings may also mean that fewer participants need to attend the mediation or may only be required to attend remotely. And as mentioned the scheduled mediation may in fact be shorter. All of these factors will open up diaries and result in earlier mediations and resolution.
Leaving lockdown, as the Government is finding, is harder than going in to it. Mediation adapted quickly and has moved online and this will undoubtedly remain as an option. The flexibility of being online and the experience gained by mediators, clients and advisors may even act as a catalyst to bring mediation in to areas and values of dispute where mediation was infrequently used. There will be challenges for mediators and mediation as we emerge in to the new normal. The one certainty is that it will be different – because clients will demand that it is and because the innovative mediators will offer it.
“Online” is at the very least going to be a part of the process because it does add value – for the mediator and therefore the client and its advisors. Where the balance lies will be determined by the case: some will remain entirely online but others will be a mixture of online for some meetings with a trimmed down “mediation day” happening sooner with fewer attendees – and perhaps as a half day. There will be cost saving opportunities as well but the benefits will arise from taking advantage of some of the points discussed. It will be different and it will be better, offering a creative resolution for clients at an earlier stage with savings in time and cost.
I was very pleased to co-author this article (and Parts II and III) with Marcus Bowman, a CEDR panel mediator who is practising from Quadrant Chambers. We wrote separately and found we agreed on almost everything – no doubt reflecting more than half a century of combined experience working as litigators and as Managing / Senior Partners of our two firms in EC3.
Parts II and III of this article looking at the operational issues in the pre-mediation phase and in the mediation itself will be published in the next few days.