The Coronavirus pandemic, the government imposed ‘lockdown’ and the extraordinary changes imposed on our everyday lives by social distancing measures that have come to symbolise 2020 have required a revolution in the justice system.
The response of the justice system has been immense and the move to ‘remote hearings’ appears to be a culture shift that will never be fully reversed. But, Kate Aubrey-Johnson asks, is this move to virtual a good thing for mediation?
Mediation has always been heralded as quick, cheap and capable of reaching agreements that would not have been achievable through litigation.
In the post Covid-19 world, online mediation undoubtedly offers a speedy solution to legal disputes. In fact, hosting virtual mediations that do not require parties to physically all be in the same place enables mediations to happen far quicker and with more parties present. The most significant advantage, as found by an online survey conducted last month by Independent Mediators, is the time saved by not having to travel anywhere.
Online mediation is undoubtedly cheaper. It removes the cost of finding and hiring a venue and the travel costs and expense of travel time for participants.
The increase in time to think, prioritise and de-clutter during lock down has produced fresh perspectives on how life is lived around the restrictions. This has changed the context in which disputes are driven and what influences their solution. What was unthinkable as a solution this time last year may now merit reconsideration and the basis for a resolution.
Participants can now choose their mediator from a greater geographical pool and mediators with more experience of mediating online are likely to be sought after.
Tech checks and safeguards do not prevent the usual challenges of technology failing and online mediations can temporarily lose a participant due to poor quality sound or visuals or patchy internet. Any challenges presented by this can usually be overcome by the mediator having pre-mediation meetings with the parties to discuss and anticipate how to respond if such difficulties arise. And of course, having full contact details including a telephone number for all participants should difficulties arise.
By now, we all know how tiring online meetings and hearings can be for participants. The level of concentration required to participate in virtual mediations requires inventive solutions, regular breaks and flexibility as to when mediation sessions take place. Mediating in the evening after court or having a mediation over two or three sessions to work through the different issues or elements of the dispute is now possible.
The use of virtual break out rooms to give parties time to speak freely though is key to enabling the mediator to clearly engage with each participant and suggest strategic pauses to support the process.
Virtual mediations make the impossible, possible.
If alternative dispute resolution is not pursued at the outset of legal proceedings, it is often not revisited without a judicial prompt. As hearings approach, issues are crystallised and minds are focused. Such last minute mediations have often been thwarted by practical challenges that are now removed in virtual mediations.
I believe online mediations have the potential to add real value even where timescales are tight. Whether face to face mediations fully return or not, online mediation has been embraced by the mediation community. Fully or partially, online mediation is likely to become mainstream and its potential to help overcome challenges to reaching resolution of disputes is to be welcomed and encouraged.