Top tips for remote mediations
The Alternative Dispute Resolution Committee has published a useful guidance note on resolving disputes remotely.
The President of the High Court has issued a clear direction that parties should engage in either formal or informal alternative dispute resolution (ADR) to attempt to resolve or narrow disputes before coming before the courts during the pandemic. Remote mediation can provide a cost-effective and flexible mechanism by which parties can reach a mutually acceptable agreement to a dispute.
Solicitors and their clients have adapted well to remote mediation, which still offers the advantages of traditional mediation, such as confidentiality, savings on costs, and control over the outcome.
Tips for success
The Alternative Dispute Resolution Committee of the Law Society has prepared some top tips for getting the most from your remote mediation:
- Remember, remote mediations can be arranged at short notice, particularly at present, where practitioners generally have fewer court commitments due to the current restrictions. From a client perspective, it is certainly easier to get key decision-makers into a virtual room than into a traditional in-person mediation.
- Because of the speed at which mediations can be convened, there are obvious legal cost savings and savings on outlay.
- Remote mediations can work particularly well when there is a lot of rancour in the dispute – for example, in family shareholder disputes, physical distance may be helpful. Parties may also be more relaxed in their home environment.
- The structure of the mediation will depend on the mediator and the parties involved. You should explain to your client how the process will run and what to expect on the day. The nature of remote mediation leads to more downtime at your desk, where other work can be completed. However, it is important to pace yourself and maintain focus on the issues at hand.
- Staggered start times can be helpful, limiting ‘hanging around’ time at the outset.
- Technology allows for the mediation to take place in ‘instalments’ over a number of days, if suitable. This can work very well with clients who might not have had the energy for a long day of mediation, such as elderly or ill clients.
- It is important to clarify in advance what technology is to be used by the mediator, and to ensure all can access it. Parties may prefer to invite the mediator to their own secure virtual room, rather than use the mediator’s technology. Practice the technology – sharing screens, etc – but remember to close down your other applications, particularly email notifications before doing so.
- Setting up a ‘back channel’ between advisors and their clients is essential if they are not in the same room. It can be helpful to use, for example, a WhatsApp group rather than technology reliant on Wi-Fi in case of connection issues. A WhatsApp group can also be a useful tool to convene a meeting at short notice.
- Encourage participants to turn on their cameras to ensure full engagement and build trust and rapport.
- Parties can stay in the room in the absence of the mediator, or can log in and out, as required. While a balance is required, and breaks are recommended from screen time, overall, you should try to remain connected with, and available to, your clients as the day progresses, in the same way as you would at a physical mediation. If you continually log off when the mediator is out of the room, valuable time that can be spent exploring the case with the client will be lost.
- Reviewing documents electronically can be intense and tiring. Giving parties a break from their screens is crucial to maintaining momentum, and quick updates can be given by phone or email.
- Joint meetings can take place in a separate joint room. The common courtesy of taking turns to speak and not cutting across other parties when they are speaking is heightened in online meetings, as there can be a delay on the line – and this is worth emphasising to clients. This often ensures a more considerate conversation than in-person meetings, particularly if emotions are running high.
- While remote mediations can be easier to convene, they can also appear easier to collapse if parties feel less committed as they haven’t invested in physical presence. So it is very important to secure proper buy-in to the process from clients by preparing for it as thoroughly as you would for a physical mediation. Remember to explain to clients, both in advance and especially on the day, what follows in risk terms if no deal is reached, just as you would at a physical mediation.
- The sometimes ‘stop-start’ nature of a remote mediation can make the process more drawn out, and distractions or technology interferences can hamper progress. Try to reduce such distractions in advance, where possible.
- 'Hallway conversations’ can still take place, but are less organic. Picking up the phone to the mediator, a client or colleague to have a side conversation can be harder than ‘bumping into them’, but is often worthwhile.
- Ensure that parties have the technology to sign up to settlement agreements, where required.
- Remember, even where full agreement is not reached in one day, points of difference can be narrowed and solutions become clearer in the subsequent days, often leading to a complete resolution shortly after a mediation.