The new normal (part 2)? Our experience of virtual mediations during the pandemic and beyond
2020 has undoubtedly been an unprecedented and challenging year for many, requiring businesses and individuals to adapt to change, including our Disputes team. Back in the summer months, we took a look at our “new normal” in the world of virtual hearings and the use of technology for dispute resolution. In this update, we share our experience of virtual mediations in light of the pandemic and our thoughts on what may lay ahead for virtual dispute resolution heading into the New Year.
Mediation continues to be a widely used method of alternative dispute resolution (“ADR”). Mediation involves the appointment of a neutral middleman to facilitate a discussion between the parties and their legal representatives. It offers parties the chance to put their respective positions to each other in a confidential and (hopefully) conciliatory setting, away from the public domain, so that attempt can be made to reach a settlement without the involvement of the court. The mediator may also have a more specialist background fitting for a technical dispute.
Parties are bound by the Civil Procedure Rules (“CPR”) to consider taking part in ADR as a way of resolving a dispute and this obligation continues even after court proceedings are issued. Failure to follow the CPR, including the obligation to consider ADR, can have significant cost consequences. This obligation has not fallen away during the pandemic, meaning parties to a dispute are now required to consider the use of virtual ADR.
Our case study: issues to resolve
We recently referred a seven-figure probate dispute to mediation, which was conducted entirely via Zoom.
This was a very challenging case from the outset. Not only did the mediation take place during England’s second lockdown (with various of the interested parties being based abroad), this was also a long-running dispute involving complex case law. Disputes are typically difficult to settle at mediation where a point of law needs to be resolved: in this instance, the key to unlocking the dispute was getting each of the parties to agree on a certain interpretation of the multifaceted case law.
Here is a summary of the practical steps we took to ensure the smooth running of the mediation:
– Before the mediation, schedule a test run with all participants to iron out any technical issues. We would strongly recommend this: during our test run, we discovered that one of the parties had sound problems – which would have caused difficulties on the day of the mediation given the whole purpose of a mediation is to listen and compromise!
– Arrange for the parties to have staggered entrance times into the “main room”.
– Ensure that the platform you select to host the mediation has “private rooms”, which will allow each party to converse with their legal team in private.
– Make sure that the mediator is flexible and ‘tech savvy’. The mediator will need to shuttle between the various “rooms”, with the ability to bring certain people (i.e. the parties’ respective legal teams) together for a joint session as and when necessary.
– Produce an electronic mediation bundle – this has significant cost savings, and positive environmental implications.
We are delighted to confirm that the matter in our case study settled during the course of the virtual mediation day itself. We not only avoided the time and expenses associated with travel to the mediation, but it allowed us to continue without time restrictions and to focus on encapsulating what was agreed in a settlement agreement immediately after the mediation.
What does the future hold for virtual mediation / dispute resolution?
We believe there is real scope for virtual mediations to become a mainstay of the array of ADR options which we have at our disposal when it comes to resolving disputes – even once things get back to “normal”. Our experience of virtual mediations (and hearings) has been nothing but positive, with there being benefits across the board (including efficiencies, dealing with geographical issues and reducing stress and anxiety for participants). Whilst there was a general reluctance to engage in anything “virtual” pre-COVID, we envisage that there will be a marked change in how dispute resolution is dealt with in a post-COVID world.