It is eight months since I first blogged about the impact that COVID-19 was having on dispute resolution in England in a piece aptly called, Adjudicating in the shadow of coronavirus. (I don’t know why, but that title always makes me think of Gabriel Garcia Marquez’s book, Love in the time of cholera. I’ve no idea why, other than the lyrical way the title sounds. Certainly, the stories are worlds apart… but I digress…)

That blog was written at the start of the first national lockdown and I followed it a few weeks later with a piece about the lessons I’d learnt in those first few weeks. By the time Jonathan came to write his October post, A few lessons I have learned from resolving disputes during the pandemic, I’d say we had become “old hands” at this on-line stuff.

But has it been plain sailing and how is mediation faring in this on-line world?

Getting everyone up to speed

During the first few weeks of lockdown, we were provided with a number of resources to assist us in preparing for and attending virtual mediations, whether that was by telephone or through the use of platforms such as Teams or Zoom. For example:

There was a letter to Civil Mediation Council (CMC) members from Sir David Foskett, Chair of the CMC, which highlighted that “the need for mediation has not gone away … the present situation could result in a greater demand for the help that mediators can bring”, and they published detailed guidance on online and remote mediation.
CEDR published its remote mediation guidance offering information for both mediators and clients, along with useful FAQs. It also acted quickly to inform and train its panel mediators on using Zoom (their preferred platform) for the conduct of mediations.
RICS launched an on-line mediation service, aimed at a range of disputes and allowing parties to “resolve [their] dispute quickly”.
Elizabeth Repper told us that parties can successfully mediate by telephone.
Professor Suzanne Rab gave us an introduction and some practical tips for on-line mediations.

I was also at the coalface and experienced the process first hand. What follows are just a few personal views.

In-person v on-line

When you mediate in person there are lots of benefits, such as:

The buzz you get from actually meeting real people (it still feels a bit weird meeting people online) and hearing from them first hand what happened and why they are before you.
It is a lot easy to go freestyle, by which I mean it is easier for the mediator to knock on a door and switch between parties when they are all in the same building, rather than navigating rooms on a screen.
It is also easier to interact and develop rapport on the day with the parties and their teams.
There is a benefit to having everyone in the same building in terms of everyone being there to “do a job/get a deal”, which can focus minds, particularly as the clock ticks around towards late afternoon.

Online mediation has its own challenges and benefits:

It can be more difficult to build rapport on the day, which means it may be necessary to have more pre-mediation day contact and/or sessions with the parties so to make more efficient use of the time we have on mediation day.
It is more tiring for the mediator being online all day. For example, we might have to use potential downtime to keep other parties updated (via text/WhatsApp/email) and also to plan the next session.
Technology might be great, but it adds a layer of complexity and requires the mediator to be competent with the platform and have the necessary wifi/bandwidth stability to allow the mediation to run its course (and Jonathan mentioned an issue I had with my kids watching Netflix during a video call).
You might need more time on mediation day simply because each time the mediator wants to do something, we have to send a text and then wait for a reply. Even something simple like the question, “can I come into the room?” can add time as it can take several minutes for the team to get back to you. Multiply it across the day and you can quickly “lose” an hour or so. The mediator also has to have comfort breaks!
There might be less urgency to get a deal on the day, since you haven’t always got the end of the day looming in the same way as when you are mediating in person, although I am seeing more and more mediations continuing after mediation day.
We don’t have to leave home, which can prove to be immensely comfortable on long days, and we get to dress down, which is also nice!

Final thoughts

After the initial shock of lockdown, we’ve all been left to make the online world work for us, and I think we have been successful at doing that.

It’s true that the take up of online mediation was slow at first but matters that were already in the diary, or that couldn’t wait, went ahead. People were cautious but we started to see people “championing” online as the way forward, once they’d experienced it.

Initially, I found that I had the same number of enquiries as usual, but a reduced amount of firm bookings. However, more recently that has changed. I now have a marked increase in firm bookings (online and in person). I don’t know if this is because people are now used to the “new normal” and/or are more comfortable with either being in-person or online. I understand that CEDR is also reporting they are back to pre-lockdown levels in terms of mediations after a drop. I get a sense that it’s a combination of parties getting on with litigation that has been delayed, as well as a general upturn in disputes.

Looking forward, it is clear that both approaches can work side by side, but they are different. I think the key is that the participants are comfortable with the environment they elect to use. After so many months in lockdown or partial lockdown, some people may feel vulnerable with in person mediations where they are “stuck” in a room all day with people who are not family members or in their support bubble, other people may feel less concerned. Similarly, some people will be comfortable (and are now very experienced) with the use of online meeting technology, and will want to continue doing things that way. As ever, it will be for the parties to choose.

by Matt Molloy