Locked down, but not out: Remote mediation amidst the Coronavirus restrictions

Amidst the current circumstances with coronavirus and the UK lockdown, the English courts are taking steps to operate remotely as much as possible with announcements that high profile commercial trials are still planned to go ahead virtually. But what about Mediation, which would usually rely on personal interaction and “getting everyone round the table” to get a commercial settlement deal done?

Any party in a dispute who has a Mediation arranged for the coming weeks/months, or who is considering Mediation, will understandably be concerned that a) it won't be possible for a Mediation to take place remotely or b) even if it can, that not being there in person (and instead by phone or video link) will harm the chances of the Mediation being successful. For parties involved in litigation, there is a lot riding on a Mediation which provides an opportunity for the parties and their legal teams to meet face-to-face to try to resolve the dispute outside of Court. Mediations require a considerable investment and commitment of time and energy from the parties and their legal teams in bringing the parties in dispute close enough together to agree to meet, followed by detailed preparation and attendance and paying the Mediator to attend. It is therefore important that everything is in place for the Mediation to be as productive as possible. In a week where good news has sometimes been hard to come by, we would like to share a success story: two of our Dispute Resolution lawyers, James Hartley and Chloe Oram, were able to adapt to the ever escalating circumstances and arrange for a Mediation of a long-running dispute to take place virtually using “Zoom” on 24 March 2020, with every attendee joining from their own homes during the lockdown - resulting in a successful outcome for their clients: “Up until the UK lockdown announced on 23 March 2020, this Mediation was set to go ahead in person in Freeths' offices (with social distancing measures in place). This was everybody's first choice, however we all agreed that we needed to have a solid contingency plan lined up given the constantly changing circumstances. It was of upmost importance to us that whatever plan we put in place would give the Mediation the best chance of success for our clients and that the technology used would not let us down. We considered various technology options, and decided to use Zoom as it is a modern, web-based service (no need to download anything) that specialises in video conferencing where there are multiple attendees. The Mediation went ahead using Zoom and we are pleased to say that it was a success, in particular for the following reasons:

• All attendees were able to see and hear each other clearly. Being able to see each other in person is a big part of a Mediation, especially during the opening session (where all parties and lawyers would usually meet face-to-face with the Mediator to set out some background about their own position). Doing this via Zoom did feel like the next best thing. On Zoom, attendees can join the call by both audio and by video. You can have “speaker view” where it makes the person who is speaking bigger on your screen, or “gallery view” where you can see all faces of those who are on the call in equal size. You are therefore able to see the other attendees as “real people” with facial expressions, gestures and emotions: the subtleties of human behaviour that you cannot pick up just by telephone.

• The “Breakout Rooms” feature of Zoom lends itself really well to Mediations as the Mediator, as the “host”, was able to split the parties off into two virtual Breakout Rooms (two separate video calls, which were confidential and secure, where we couldn't see or hear the other party) and he could move between the two Breakout Rooms, or be in neither room - as would be the case in a usual physical Mediation. After the opening session, this is how the Mediation was conducted. This meant that we didn't have to switch in and out of different types of programmes and could keep everyone within one mediation platform for both the group sessions and private room discussions - which helped to keep up a sense of momentum throughout the day

For the Mediation to go ahead this way, the legal teams needed to be prepared to adapt quickly and to think creatively and collaboratively about what would work best for our clients. It was important that everyone was fully committed to throwing themselves into a productive Mediation remotely to give it the best chance of a successful outcome for our clients. We were also grateful to the Mediator who was willing to learn the functionality of hosting a Zoom call, despite this also being new to him. With everyone being solution-focussed we were able to secure the best outcome for our clients of a settlement being reached irrespective of the difficult and unprecedented circumstances.” None of us know at this stage how long social distancing is going to last, and many clients cannot afford to wait indefinitely as the situation continues to evolve, but with many innovative options for video conferencing and other technological solutions at our fingertips it is reassuring to know that disputes do not necessarily need to lose momentum and, in the context of settlement discussions and Mediation, if both parties, and their legal teams, are prepared to be creative and collaborative, successful resolutions can be reached. *Please note: Zoom is of course one of many videoconferencing options available and it is worth clients and legal advisors researching to find out which platform or service will best suit their specific requirements.*

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If you would like to talk through the consequences for your business, please email us and one of our team will get in touch.