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Remote mediation: Is it the future?

Guest post by Constance McDonnell QC and Beverly-Ann Rogers of Serle Court Chambers

Constance McDonnell

What if the technology fails? Will we have privacy in the virtual breakout rooms? Will the engagement be as good as face-to-face? How will we sign an agreement?’ These were the kinds of questions asked by lawyers when remote mediation was proposed. More than a month on from lockdown, lawyers are firm converts, with many saying it could be the future.

The technology does work and, using the Zoom platform, the mediator host can create a series of private breakout rooms for each party, as well as lawyers’ or experts’ rooms which enable different groupings and discussions as seamlessly as if everyone was in the same building.

A pre-mediation meeting provides a dry run for the technology and assurance as to the privacy of the breakout rooms, as well as allowing the lay client to meet the mediator and cover some preliminary ground so that the day of the mediation can be focused and effective.

On the day, we recommend staggered entry times to the meeting for different parties; it avoids embarrassing moments in the virtual waiting room and prompt transition into assigned rooms. Moving lawyers around virtually during the mediation creates a moment of frisson; accidentally sending them to the other client’s room is the mediator’s nightmare but one avoided to date.

The fear of a technological breakdown has receded with experience, but a WhatsApp back-up and mutual swapping of telephone numbers provides a comfort blanket just in case.

Technology apart, perhaps the greatest initial concern was whether remote mediation would allow effective engagement.

Constance found we were able to speak to each other as if we were across the table and her solicitor, declaring herself a convert, said “the process itself was much more relaxed and it was still possible to read our clients’ body language and pick up cues from that”.

Lawyers have also noted that, when ready to make an offer or ask a question, it was an advantage to be able to request (by clicking a button) that the mediator joined their room – not possible during a physical mediation if the mediator is in the opponents’ room.

For some clients, the physical and psychological comfort of being in their own home may outweigh the benefits of a face-to-face mediation. Another bonus of a fully remote mediation is that it can save many hours of travel and the attendant cost, and it easily accommodates parties spread across the globe.

Beverly-Ann Rogers

On a practical level, you need to consider how to sign up to the mediation agreement and how to draft and sign a settlement agreement. Parties or their lawyers  can sign the mediation agreement in gallery view on the day but in practice it seems easier for the lawyers to confirm by email that their client accepts the terms of the mediation agreement and that any other attendees accept the confidentiality provisions.

There are a number of different options for drafting and signing a settlement agreement. One side can draft and share it by email, or lawyers can draft together in a breakout room using the screen-share facility. If the parties or their lawyers have access to print and scan facilities, they can swap signed copies of the agreement. Alternatively, they can confirm agreement by email to the draft sent at X time on Y date.

So, what of the future? Remote mediation has definite advantages in enabling cost-effective pre-mediation or follow-up meetings as an adjunct to face-to-face mediations and fully remote mediations may become the norm where physical distance or other considerations make meeting in person difficult.

One advantage everyone is agreed upon is the speed with which one is home, drink in hand, when the mediation finishes!