*Lilly Parratt & Shivam Rehan
Background:
With the Covid-19 crisis having a significant impact on all industries, our aim was to take a closer look and examine the potential effects which it has had on the practice of mediation.
- Remote mediation
Our initial focus was to outline that although online mediation pre-existed, the most common structure prior to the pandemic was face-to-face mediation, with the majority of parties opting for a physical session. Whilst recognising that physical mediations are resuming (following health and safety measures), we aimed to identify how service providers managed to efficiently move online during times when physically meeting was prohibited. We sought to highlight the benefits of remote mediation, covering it’s flexibility, cost-effectiveness, and the potential to spend less time commuting to physical venues. With an aim to indicate the substantial practical benefits which online mediation offers.
Despite this, through research, we recognised the potential obstacles which online mediation presents. Being based on a virtual platform has led to an impact on the non-verbal communication between mediators and clients within sessions. We conclude that there is great scope for a growth in online mediation, as the practical benefits it can provide are indubitable, whilst acknowledging that its success depends on the specific client and the set of circumstances.
- Potential growth and the future of remote mediation
Highlighting the growth of mediation during Covid-19, because of the court-backlog, we point to a potential realisation that mediation works, not only as an alternative, but as the first option. We further explored the logistics of mediation, taking into account it’s rapid growth within recent years. Researching and analysing both the advantages and disadvantages of online mediation, we were able to scrutinise how technology is flourishing with its potential of becoming the future backbone of mediation.
- Remote Mediation: Adapting to Covid-19.
Covid- 19 has had a global impact on the everyday lives of citizens. With social distancing measures set to be in place for the foreseeable future, how has Covid-19 affected Alternative Dispute Resolution (ADR) and in particular, the practice of mediation?
- What did mediation look like before Covid-19?
Online Dispute Resolution (ODR) has offered parties an innovative tool to resolve disputes for decades. ADR
ODR International, founded by Rahim Shamji in 2016, is just one service provider which demonstrated prior to Covid-19, just how technology could facilitate the resolution of disputes, through practices such as online mediation.
Despite the pre-existence of online mediation, prior to Covid-19 the most frequently used model of mediation was the traditional structure of in-person, face-to-face contact, requiring the parties to travel to a venue. This physicality enables a mediator to read the parties body language and build trust and rapport within the sessions, in order to guide the parties towards a desirable outcome.
How has Covid-19 affected the practice of mediation?
- Remote mediation
With the globe spiralling into lockdown and the social distancing measures in full swing, face-to-face mediation had to adapt, and do so expeditiously. As restrictions were eased, nations steadily crept out of lockdown. The question of whether there will be future waves of Covid-19 may be uncertain, but what is certain, is that mediation managed to adapt rapidly to the unprecedented period. Services which had previously provided mediation through the traditional structure of face-to-face contact, quickly turned to technology to allow business as usual. Video conferencing through digital platforms such as Zoom, and Skype became the norm.
Even the use of telephone calls and private emails became an alternative for service providers.
Video conferencing provides parties with a platform to visually connect through seeing one another (albeit being virtually). Utilising the breakout rooms on forums such as Zoom enables private sessions to go ahead, so parties can privately communicate with a mediator, secluded from the others. This effectively mirrors the usual structure of a face-to-face mediation. The leading national law firm Freeths, transitioned to Zoom in March. James Hartley and Chloe Oram, two of the firms Dispute Resolution lawyers highlighted the success of remote mediation through platforms like Zoom as ‘you are able to see the other attendees as real people.’[i]The Centre for Effective Dispute Resolution (CEDR) were quick to release their ‘Mediator’s Guide to Online Meditations’[ii] which demonstrates how to efficiently carry out online mediations.
- Is online mediation advantageous?
Online mediation provides a flexible alternative to the traditional structure of mediation. It overcomes geographical barriers, as parties involved in international matters can use digital platforms to easily connect. Furthermore, a digital platform is cost-effective, as Goodman submits, there is no need to rent a neutral facility to conduct the mediation, as well as the convenience of materials being readily available; not having to be transported great distances.[iii] In many circumstances, online mediation may be ideal for these practical reasons. Furthermore, for certain subject matter, for example, a family dispute including the ex husband and wife, not having to be face-to-face may be a preferable whilst more suitable method of resolution involving a sensitive topic.
Using digital platforms to execute mediations may offer clear practical benefits, with the ability to build rapport through virtual means. Despite this, many mediators are aware of potential weaknesses. Alerting to the difficulty in reading clients body language through digital platforms, mediators can only see what the client shows online, which in most cases is merely the clients head. The lack of non-verbal communication could potentially affect the mediators ability to build rapport. Another obstacle is that the parties may not feel comfortable opening up on a virtual platform, which could therefore serve as a barrier for some clients. Additionally, although online mediation provides a great route to overcome geographical barriers, there are still obstacles such as time differences, and unstable internet connections which can pose as weaknesses.
Whether online mediation is effective depends on the client and their circumstance. For some clients’ online mediation may be the most practical means to resolve a dispute, but for some it may be a barrier. With the traditional structure of mediation being allowed to resume (whereby health and safety requirements are being complied with) it is uncertain whether the scope of remote mediation will continue to grow, however the practical benefits which online mediation provides means there is great potential for it’s continuance and growth in a world without Covid-19.
- Mediation, the growth during Covid-19:
A growth in the practice of mediation was inevitable during the uncertain times which Covid-19 generated. With court closures, postponed hearings and only a select number of hearings proceeding through the court system, lawyers and clients had no choice but to turn away from the courtroom setting and towards the alternative. The backlog of court cases means that clients could be waiting a substantial amount of time for cases to proceed. Fundamentally, this has forced many to utilise innovative practices such as online mediation and see the potential of mediation as a first option. As Linklaters state within their online Covid-19 guidance, not only will mediation provide a route for disputes which pre-existed, it will be the route for many whose disputes have arisen because of market dislocations.[iv] If businesses are unable to fulfil contract agreements, and the number of cases able to proceed through court are limited, then it is unavoidable that online ADR will be turned to.
The Future of Mediation?
All aspects of our lives are affected by the dangers and restrictions imposed by the current COVID-19 pandemic. Those who practice civil and commercial litigation, courtrooms are closed. Banned from practising law out of offices and all of the scheduled court appearances, deposition dates and other mandated discovery responses are extended, often without a date. In 2018, they estimated that the size of the civil and commercial mediation market in England and Wales was 12,000 cases – a 20% increase than 10,000 cases in 2016.[v] ADR may rapidly increase, sooner than expected. None of us are sitting back waiting for the “curve” to “flatten out” and disappear; for travel, even to our offices, to become possible or practical, for the courts to open and for appearance and discovery dates to be imposed. We all have clients whose need for legal services continues; law firms and smaller professional offices that can only be supported by some degree of continuing revenues and an opportunity to prepare, for example, affidavits, briefs and discovery responses that will be required when the courts to a substantial degree open up. The pandemic has disrupted business and social environments in ways we could not have imagined. Mediation is the best dispute resolution forum we have to deal with the relational and commercial aspects of the many conflicts that are now emerging. We can expect mediation to become the ‘new normal’ for many cases – in both it’s online and offline forms. As technologies are changing the way in which people communicate and interact with one another, they will invariably change the way conflicts are resolved and mediations are conducted. With the use of this technology many businesses and individuals are adapting to the idea of home working and finding new strategies to communicate effectively, with mediation this would lead to cheaper costs, quicker processes and less time spent on commuting. However, many mediators have argued that online mediation is much more difficult and tedious, as many client’s aren’t able to provide video conferencing due to a number of factors including location and device type. Nevermind whether offline or online, mediation platforms will be growing exponentially.
*Law Students, University of York, United Kingdom
[i] Chloe Oram, ‘Locked down but not out: Remote mediation amidst the Coronavirus restrictions’ (Dispute management, 3 April 2020.<https://www.freeths.co.uk/2020/04/03/locked-down-but-not-out-remote-mediation/>
[ii] CEDR, ‘Mediation Guide to Online Medition’, available at https://www.cedr.com/wp-content/uploads/2020/03/Mediator-Guide-to-Online-Mediation-1.pdf. (Last accessed at November 10, 2020).
[iii] Joseph W Goodman, ‘The advantages and disadvantages of online dispute resolution: an assessment of cyber-mediation websites’ 2006, volume 9 issue 11, Journal of Internet Law, 1, 8.
[iv] Linklaters ‘Covid-19- Alternative methods of dispute resolution’, May 2020. <covid19_inspiring-adr-solutions.ashx>
[v] Centre for Effective Dispute Resolution. “The Eighth Mediation Audit.” CEDR, 10 July 2018.