27 August 2020
The Benefits of Virtual Mediation
Alternative dispute resolution (‘ADR’) is a vital tool which facilitates a proportionate and cost-effective response to legal disputes. This remains the case as much as ever during the Coronavirus pandemic. The Overriding Objective set out in the Civil Procedure Rules makes it a requirement for all parties to consider ADR from the very beginning of every dispute as well as throughout the case. Importantly, when it comes to assessing costs the courts consider whether a party acted unreasonably in failing to attempt to settle the dispute via ADR.
Mediation is by far the most popular and most frequently used method of ADR. It is a confidential process intended to facilitate the settlement of disputes through the use of an impartial third party. It provides parties greater control over the resolution of their dispute and allows them to be directly involved in negotiations. In addition, the entire process is subject to without prejudice privilege. Coupled with lower costs than litigation and a quicker outcome it is unsurprising that the number of mediations has increased by 20% in the last two years.
Typically, the exercise involves all parties attending a venue together with their legal representatives and the mediator. There is an initial plenary (joint) session, and subsequently the parties move into individual breakout rooms.
Best Alternative to a Negotiated Agreement vs. Worst Alternative to a Negotiated Agreement
Pre-action correspondence and Particulars of Claim become muddied with every issue, however small, within the dispute. A mediation shines a spotlight on the key legal and evidential issues that need to be considered by both parties when calculating litigation risk.
The plenary session is an effective way of making the opposition realise the weaknesses inherent in their position and the added risks of litigation if a settlement is not reached between the parties.
Since lockdown has been implemented, mediations have continued virtually through mediums such as Zoom. Initially, this gave rise to scepticism within the dispute resolution community. Primary concerns related to the fact that the parties would not be in the same room as their legal representatives as well as the technology involved. While lockdown has continued over the last few months these concerns have been put to rest.
Videoconferencing facilities allow the parties to have individual breakout rooms and the mediator can go back and forth between the separate conferences. The mediator can also adjoin the separate breakout rooms whenever it becomes necessary to do so. Therefore, the fundamental aspects of the process itself are no different than they would be if the mediation were to take place at the same location.
Moreover, remote mediation means that the parties’ legal representatives and the parties themselves do not have to incur travel and accommodation costs. The participants can attend the virtual mediation in comfort from anywhere.
At times, parties in a mediation might be reluctant to face each other in person due to extreme hostility. The virtual medium acts as a buffer and promotes an environment wherein resolution of the dispute does not become obstructed with belligerent reactions. This allows for a clearer mindset, making the plenary sessions even more effective.
As restrictions are lifted and life goes back to normal, it is expected that remote mediations will continue to play a key role in the settlement of disputes.