Remote Mediation

Remote mediation offers benefits like reduced costs, easier scheduling, and no travel, with platforms like Zoom enabling confidential discussions and breakout rooms. However, mediators must adapt to the lack of non-verbal cues and focus on building rapport differently. Thorough preparation, including organised electronic bundles and client readiness, is vital. Effective and efficient, remote mediation is likely to remain a lasting feature of dispute resolution.

Plan the mediation thoroughly, considering multiple sessions over several days if needed, and prepare your client for the process, as you won’t be in the same room. Decide how to run the plenary, who will speak, and how to manage client comments, using email or text for side-channel communication if necessary. Encourage clients to express emotions, as everything is without prejudice and airing frustrations can be constructive. Hold a pre-mediation video conference with the mediator to test the system, address administrative and privacy issues like screen sharing, and, if possible, include the other side to familiarise everyone and avoid surprises. Avoid full-screen mode to enable background email communication with clients, the mediator, or the other party, and take regular screen breaks. Ensure key decision-makers are identified and available, and for straightforward disputes, prepare a draft settlement agreement with boilerplate clauses in advance.

Ensure a strong Wi-Fi connection, a charged device, and a quiet, disturbance-free environment. Share your mobile number with your lawyer and mediator for backup communication, and meet the mediator remotely beforehand to address any concerns. Use email for sensitive content and avoid unnecessary platform chats. During downtime in breakout rooms, take breaks for exercise or refreshment but inform the host if stepping away. Keep snacks and drinks nearby to stay energised throughout the day.

No video conference (VC) platform is specifically designed for mediations, so lawyers must rely on existing options that generally work across devices, allow easy access for non-account holders, and offer features like chat and screen sharing. Key considerations include breakout rooms for private discussions, as not all platforms offer this feature; gallery view to display 10-25 participants equally for effective joint sessions; prior experience with the platform is also useful, with pre-mediation rehearsals recommended for less intuitive platforms like Microsoft Teams; and security, as confidentiality is critical and platform security must be thoroughly assessed.

The legal principles of video conference (VC) mediations, such as confidentiality and privilege, are the same as in-person sessions, and the process is similar, with joint and private sessions. However, practical differences include pre-mediation reviews, where mediators arrange video calls with lawyers to test the platform and discuss the agenda, sometimes offering a dry-run with clients to save time on the day. Staggered joining times can avoid waiting, with attendees joining at different times and using private breakout rooms until joint sessions begin. Unlike in-person mediations, VC sessions lack seating plans, so participants appear in a random grid, making it important to focus on introductions to identify speakers. Maintaining focus can be challenging due to home or work distractions, but mediators can help by setting clear agendas, pacing sessions, and scheduling breaks, which may be more effective in VC mediations as participants can fully step away. These adjustments ensure VC mediations remain smooth and effective.

Confidentiality in video conference (VC) mediations is crucial, and mediators can enhance security by using passcodes, waiting rooms, meeting locks, and disabling features like screen sharing. While risks like hidden attendees and covert recordings persist, clear mediation agreements and a focus on confidentiality can mitigate them. Security largely depends on the VC platform, so law firms should assess compliance with standards like the UK National Cyber Security Centre’s guidelines. End-to-end encryption is most reliable when participants use the platform’s app, and privacy policies should be reviewed for GDPR compliance and data centre control. These measures help ensure secure and private VC mediations.

In video conference (VC) mediations, settling agreements remotely requires practical solutions. For negotiating terms, lawyers can use email with track changes, screen-sharing on VC platforms for collaborative drafting, or secure document-sharing tools like Dropbox, ensuring all drafts are marked "subject to contract". For signing, options include binding email exchanges where final wording is agreed upon, converted to a PDF, and accepted via email, or using electronic signature software like DocuSign, which simplifies the process with some prior setup. If printing is possible but scanning is not, a photograph of the signed document can suffice, with a follow-up PDF recommended for legal proceedings. These methods ensure agreements remain legally binding and efficient in a remote mediation setting.

The COVID-19 lockdown spurred a surge in guidance on remote mediation, with the mediation industry producing extensive advice. Resources range from technology use, including platform specifics, to the roles of participants in this new environment. The Civil Mediation Council (CMC) published a notable guide in March 2020, emphasizing confidentiality and privacy in remote settings. However, like other guidance, it lightly addresses challenges such as technical issues and managing emotional clients without non-verbal cues, which require quick thinking, innovation, and practice to navigate. Additional advice on remote mediation, including our own insights, is also available.

Correct as at 29/5/2020

Predicting how courts will handle refusals to mediate is challenging, but recent case law suggests they are becoming stricter on parties who unreasonably avoid alternative dispute resolution (ADR). For instance, in Wales v CBRE Managed Services [2020] EWHC 1050 (Comm), the successful defendant lost a significant portion of its costs for refusing to mediate, echoing similar outcomes in DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB) and BXB v Watch Tower and Bible Tract Society [2020] EWHC 656 (Admin). Even before COVID-19, court pressures encouraged mediation, and the pandemic has only worsened backlogs. Courts have adapted to remote hearings, as seen in Re Blackfriars [2020] EWHC 845 (Ch), where a trial was ordered to proceed remotely. Given this, courts may have little patience for parties citing the inability to meet face-to-face as a reason to avoid ADR, especially since remote mediation offers opportunities to hear the other side, explore issues, and test one’s case in a without-prejudice setting. While remote mediation may not suit every situation, such cases are likely to be rare.