Will the latest lockdown see a new dawn for mediation?

Nobody could have predicted last year’s pandemic. Nor could anyone have envisaged how quickly remote mediation would be embraced by mediators and mediation users alike. But there it is. Now here we are in 2021 and COVID-19 continues to affect our lives and businesses - so what might this mean for mediation?

What’s clear to me is that familiarisation with online mediation has opened up new doors to how the skills of an experienced mediator may be used. At IPOS Mediation, we’re often asked to mediate disputes pre-issue but sometimes parties can be resistant to getting help at an earlier stage of a nascent dispute. This is commonly attributed to parties not feeling that they have all the information they require but I suspect two other reasons come into play - parties are put off by the amount of organisation required and by the formality ascribed to such logistics at what feels to be too early a stage in the dispute. It’s true that in-person mediation requires planning - arranging a date convenient to everyone, securing a suitable venue, catering, travel etc - and yes, being required to gather in one place, perhaps having flown in from another country or continent, does add a sense of formality.

Remote mediation removes those blocks and makes seeking the help of a third party neutral at an early stage a much more palatable proposition. Take, for example, two boardroom executives who aren’t communicating - they can simply enlist the help of a mediator, via video conference, to assist them in working through their issues for an hour or two or over a number of sessions if required.

With the ease and accessibility of online mediation, I hope there will be new converts to early stage mediation. Where issues aren’t yet disputes but might be difficult conversations, a skilled mediator can help parties to engage. Likewise, mediation can be used to assist in contractual negotiation or facilitation. The former is particularly relevant to SMEs who, as a result of the pandemic, may need to rejig or renegotiate their contractual obligations.

What businesses certainly don’t need right now is a dispute that escalates to a money-sapping, time-consuming, lengthy court battle (for which they may also be in for a frustrating wait, given the backlog of cases). Encouragingly, the government, those in the civil justice system, even the Cabinet Office with its snappily titled 'Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency', appear to be in agreement on this. All have made positive noises in favour of mediation. But will this be the year talk turns to action and change? Will there finally be a sea change in the way mediation is perceived, promoted and prioritised?

In 2021, will ADR becomes less 'alternative' and more 'automatic' - a natural first step in resolving disputes?