Following the outbreak of the pandemic last year I have had just two face-to-face mediations, all the rest have been via Microsoft Teams or Zoom. I spent hours in March through May 2020 testing out various video conferencing platforms and dealing with all the issues around security and confidentiality (security on both platforms has been significantly improved). Both Teams and Zoom work extremely well at replicating the physical world for mediations.
I create a private meeting room for each party (so if you don’t want to meet the other side you don’t have to) and a room for any joint sessions. Moving from room to room is simple. You can always see who is in your room, so confidentiality is assured. The other side will never be able to enter your private room unless you specifically permit it. The results have been surprising. The settlement rate of my on-line mediations is virtually identical to face-to-face mediations. Here are my thoughts on some of the benefits and a few of the disadvantages of this move on-line.
The parties are more relaxed. Mediation can be an intimidating process and the venue itself and the prospect of meeting the other side can add stress. I have heard from many participants that being at home has been a significant factor in reducing stress. The downtime in a mediation when you are waiting to hear from the other side can be dealt with by turning off your camera and hitting mute and then re-convening in your room when necessary.
No travel. On-line mediation removes the cost, time and aggravation of travelling to the venue. Costs savings can be considerable including solicitors’ and barristers’ time and expenses in addition to the participants’. It also means participants living abroad can take part on an equal basis.
Pre-mediation meetings. I always offer to test the video platform with the parties ahead of the mediation so they know how it will work on the day. This helps the parties get to know me before the mediation.
Some disadvantages include inevitable issues from time to time with Wi-Fi dropping out, poor connections, users muting themselves or struggling with device settings. These are usually easily overcome. I would also say it can be more difficult for mediators, lawyers and litigants alike to pick up subtle nuances of meaning in words said or body language used when working via video. Working on settlement documents can be problematic too but the excellent screen share functions combined with e-signature software is mitigating this issue.
I think the success of video conference mediation has been so good that, even when this terrible pandemic is over, on-line mediation will be the rule rather than the exception.
Philip Hesketh is a Mediator at www.HeskethMediation.com