Ian Timlin: The challenges of ‘virtual mediation’ as a result of COVID-19
The new process virtual mediation for construction companies may not be as effective and is also less secure unless certain measures are put in place, warns Ian Timlin.
Organisations that are looking to use mediation as a way to resolve a dispute without the need for costly litigation need to be aware of the impact that the Covid-19 pandemic will have on the process in the coming months, and the potential pitfalls and challenges.
From a practical point of view it has been relatively straightforward to bring mediation online with Zoom, for example, being used as the facility for secure separate breakout rooms for separate parties and for bringing the parties together in a plenary session. The mediator can then speak to each party separately or with the parties together, virtually switching online from room to room.
However, this does mean that things are not necessarily as secure as in a physical situation. As a result, we are advising that there is an online mediation protocol in the mediation agreement to be signed by the parties which governs the terms of how the virtual mediation progresses and the rules that are to be adhered to. It should cover areas such as not recording the sessions or sharing of the mediation meeting ID other than to participants involved to ensure no one ‘sits in’ unannounced.
Also, each party should agree that if for any technical reason, including error on the mediator’s part in moving parties correctly to the breakout rooms, they can see and/or hear a private conversation between the mediator and/or any other party, they must terminate the session at once and call or text the mediator.
The biggest challenge remains the fact that it is much more difficult to establish a genuine rapport across a screen with the mediator and other parties and this key is in mediation to gain a parties’ trust and confidence.
Before people are willing to settle, they must feel that their interests are truly understood, and only then can a mediator reframe problems and float creative solutions. Eye contact with the other side can be difficult if they are sitting well back from their screens and not in the same room and therefore it is vital that participants show their faces and do not hide behind their name on a black screen or stock photo of themselves. That way each party and the mediator can see how they are reacting to the points being made.
Whilst online mediation is new to many organisations, eBay is a big user and it is estimated that an incredible 50+ million disagreements amongst traders on eBay are resolved every year using online dispute resolution.
There is no doubt that virtual mediation is here to stay and is certainly appropriate for low value disputes. However, where considerable sums are in dispute or complex issues arise, serious consideration should be given to the traditional form of mediation even in the current circumstances.
- Ian Timlin is a specialist dispute resolution and commercial litigation lawyer at Conexus Law