As discussed in part 1 of this series (Dispute Resolution and COVID-19), the UK's system of civil justice, through the courts and tribunals, will slow down somewhat due to the coronavirus and the government's lockdown measures to tackle the virus. As a result, companies involved in litigation or tribunals face delays in having their disputes determined. In response to this situation, on 19 March 2020, the Lord Chief Justice, Lord Burnett, gave encouragement to parties engaged in litigation to "explore…the possibility for compromise".
Many commercial disputes are resolved via mediation with an independent mediator helping the parties to negotiate a settlement. Mediation is extremely popular with parties because, very often, it results in a settlement which saves them from the further costs and disruption that continuing with litigation would entail. As pointed out by the Lord Chief Justice, the COVID-19 lockdown means that the benefits of settling over litigating are greater than ever, but how can you mediate if you cannot meet your opponent in person with the mediator and lawyers also present to guide the process? In this update, we consider the possibility of holding a mediation online.
Is remote mediation permissible?
Yes. There is nothing in the UK court rules or the usual rules for mediation that prevents remote mediation. In fact, online mediation (via video or telephone) is actively promoted by leading mediation organisations like the Centre for Effective Dispute Resolution (CEDR).
The logistics and practicalities
When talking about remote mediation, one is really dealing with the fact that the mediation day itself, the negotiation, is carried out remotely instead of in person. Other aspects of the mediation process – agreeing the mediation agreement and exchanging mediation case statements – are already carried out remotely and so are unaffected by the pandemic.
There are significant benefits in holding mediations remotely. Sessions can be arranged more quickly and are accessible for all to attend, no matter where they are located. The cost and time of travel is removed. Not being physically present can diffuse tension and animosity, which can help in finding a compromise. Sometimes, the fact that the mediation is online will result in parties being more direct and getting to a solution more quickly rather than playing negotiating games that lead to very long mediation days where the parties meet in person.
The mediation day(s) can take place using a variety of online platforms, either used individually or in combination, including Skype, Zoom, FaceTime, GoToMeeting, telephone and / or email. The method(s) agreed will depend on the facilities available to the parties and their level of comfort and familiarity with using them. An important factor to take into account in selecting a platform is the need to switch easily from one meeting to another meeting with different participants.
As with an in person mediation, the mediator will work as an intermediary between the parties throughout, combining joint sessions with separate conversations with each party (and their lawyers, experts or other advisors as necessary). Parties can take breaks as needed but should always remain close to their computer, telephone or any other device used (although the larger the screens used the better so that body language and facial expressions can be seen).
As with any online interaction involving multiple participants, there is potential for technical hitches to impede the process. This can be particularly irksome where there is tension and important matters to be discussed, as at a mediation. It's essential therefore that, before the mediation day, everyone taking part is familiar with and knows how to use the chosen platform.
We recommend that the number of participants should be kept to the essential minimum needed. This is because the greater the number, the more difficult it will be to communicate effectively and clearly.
The parties will want to communicate privately during the mediation. They will also want to be able to communicate privately with their lawyers. In preparing for the mediation, parties will want to consider how this communication will take place.
What else do parties need to consider?
Confidentiality is absolutely vital in mediation; the parties need to know that anything they reveal as part of the mediation will remain confidential and will not be disclosed to anyone else. The mediator will want to discuss this question right at the start of the process and include strict provisions in the mediation agreement to protect confidentiality. For example, the parties should agree that no one who is not named as a participant in the mediation agreement shall have access to or be able to see or hear the mediation. Parties may also want to consider an express prohibition against recording the mediation.
The mediation agreement should make provision for how any settlement agreement will be signed and completed. We recommend an electronic signature and exchange of emails in the current crisis. See: https://www.osborneclarke.com/insights/electronic-signatures-covid-19-business-unusual/
The choice of a mediator is always an important consideration but never more so than when the mediation is conducted remotely. For a mediation to succeed, the parties must trust the mediator and this trust is sometimes only established after the parties have got to know the mediator, through in person discussions at the start of the mediation day. With online mediation, this will not be as easy and we recommend selecting a mediator already known to the parties or who has extremely effective communications skills to overcome the potential shortcomings of working online. These skills will also come into their own when it comes to chairing the mediation online. The parties and the mediator must also buy into the idea of holding the mediation online and be willing to adapt their approaches accordingly as communicating online is not the same as in person.
If you would like to discuss how we can assist your business in exploring mediation options, please contact one of the experts listed below, or your usual Osborne Clarke contact.