Zoom and other virtual meeting platforms proved themselves in many ways during the lockdown of 2020 and will continue to be relied upon, including in mediation.
However, according to Ian Timlin, a specialist dispute resolution and commercial litigation lawyer at Conexus Law, there are pitfalls and challenges; the new process may not be as effective or secure unless certain measures are put in place.
“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,” he says. “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.”
However, the biggest challenge, Ian Timlin believes, is that it is more difficult to establish a rapport across a screen with the mediator and other parties than it is when meeting face to face, and this is key in mediation where it helps substantially 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,” he says.
While online mediation might be new to many organisations this year. It has actually been around for a while, Mr Timlin says. An estimated 50+ million disagreements among 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,” he concludes.