Diary note of a remote mediation

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A colleague and I recently took part in a remote mediation over Skype. It was our first time doing so and the experience was certainly different and interesting. Given that there are likely to be many other litigating parties seriously contemplating the use of remote mediation (some with reservations) and that the parties advocating the use of virtual mediation will often have a vested personal interest in them, we thought that it might be helpful to share our own candid experience of a recent remote mediation.

We were originally due to mediate in person in our London office in mid-March. The various attendees were based in four different locations (the opponent was based almost 300 miles from London). Due initially to government recommended travel restrictions and then subsequently the mandatory lockdown measures imposed by the government to contain the spread of COVID-19, a face-to-face mediation became unfeasible. It also became apparent fairly quickly that any face-to-face mediation was unlikely to be possible for some time.

With mediators suddenly working in overdrive, and with a plethora of emails and webinars where they sang effusively the virtues of remote mediations, we began to explore with our client the possibility of agreeing to a mediation by video conference. There was, unsurprisingly, a fair degree of initial scepticism over whether a mediation by way of a video conference would, in reality, be effective and justify the significant cost of undertaking the exercise. The primary concerns related to the effectiveness of a mediator to be able to hold court; potential lack of engagement on the day with distractions at home and potential technology/IT security concerns. The issues were explored at length with our client, IT personnel and also with the mediator and our opponents.

After some deliberation, various IT security permissions being obtained, a couple of failed dry runs and some minor wrangling between the parties over the precise mechanics, we eventually reached agreement on proceeding with a remote mediation (some six weeks after the original scheduled mediation date) using Skype for Business.

A bespoke mediation agreement tailored specifically for a remote mediation was agreed and electronically signed in advance of the mediation.

We agreed that in order to replicate the mediation format, we would have three separate private video “rooms”; one for joint sessions, and for each side (with separate dial-ins), with no prospect of any “contamination.” We would not have the dial-in details for the other side’s private room and vice versa.

All parties were required to provide telephone numbers in advance to ensure strict security and we would only allow non-team attendees into our “room” (including the mediator) (from the lobby) on express request. The parties all expressly agreed that cameras would be kept switched on throughout any joint sessions and that no recordings would be made of the mediation in any form. We also agreed that given there were no longer any travel concerns (which was a significant bonus for both parties), the mediation could start at an earlier time than perhaps was usual. So far, so good.

Attention then switched to preparation for the mediation. A key question was, what was deemed appropriate attire? We agreed between ourselves and the client that it would feel unnatural to be sat at home in formal suits and ties (we also agreed that a Liverpool football shirt was probably not appropriate – and possibly too boastful as champions-elect!). We agreed, by consent, therefore, that a dress code of smart casual (and for men, collared shirts) was appropriate.

We also made sure that all the finer details as regards the mediation were addressed in advance (appreciating that it was likely to be harder to resolve any minor issues on the day). A draft working settlement agreement (shared with and approved by the client) was prepared in advance. Electronic signatures were signed and scanned in readiness for execution of the settlement agreement (which was expressly agreed with the other side in advance as an accepted method of execution).

Pre-mediation test calls also proved highly useful in testing the robustness of the technology and equipment. Factors that we hadn’t previously considered relevant also suddenly took on far greater significance during the testing. Did we need to rearrange our “offices” to ensure our desks were facing the window or was the lighting likely to be adequate for the duration of the day? Did any distracting pictures or ornaments need to be hidden away from view? Would the laptop microphone/speakers be adequate or would it better to use a headset (in the end, we opted for a headset with a microphone).

The day of the mediation duly arrived. I barricaded my home office with boxes in front of the door to act as an obstacle to a five-year-old suddenly bursting in! I then dialled in to the joint plenary “room” 15 minutes before the scheduled start time. While most of the 18 attendees dialled in with no issues, it became apparent that despite a positive test run the previous day, the Videocon facility was not functioning for one of our key client attendees. The mediator and the other side’s solicitor were also having difficulties. Inevitably, this led to delays (and some frustration) but eventually –some 40 minutes after the original start time – everyone bar one of our client attendees (who dialled in by phone) was able to connect to the plenary session by video. The mediation was then able to formally commence.

The rest of the plenary session sounded, at least, like any other mediation we had ever done. However, the obvious discernible difference was the difficulty in being able to pick up both verbal and non-verbal cues. We have always found, for example, body language to be so important in judging the mood and tone at a mediation, particularly when either I or someone from our side was speaking. This was far more difficult over a video call.

First, most of the attendees, to avoid interrupting, put themselves on mute. This made the session slightly more formulaic with everyone keen to avoid speaking over each other – it therefore restricted the usual conversational flow to some degree. It also meant that there were no obvious verbal cues, such as any audible deep sighs or exasperations. Usually, these can act as key indicators of points of contention between the parties.

There was also a reduced ability to pick up on any key body movements (such as hand gestures or leg tapping). Similar to verbal cues, body language is very useful in judging the mood and level of engagement on the other side.

The ability to make direct eye contact – to look the opponent in the eye when making certain points – is also such an important and effective part of a mediation. Plainly, that is not, and was not, possible over a videoconference with 18 attendees.

Having said that, the mediation was far from void of emotion or posturing and appeared to remain a cathartic process. All attendees were clearly visible and facial expressions/movements were arguably even more noticeable than in person. A great point made by one mediator recently (and which is easily forgotten) is that for a mediator there is now the ability to see more than just the “side of a nose in a line of profiles”!

We also felt that both sides had a sufficient opportunity to make their points. In particular, both we and our client felt that we were able to make the points that we wanted to in a compelling and persuasive manner. The opponents appeared engaged and seemed to be listening attentively throughout. Importantly, the technology held up and there were no discernible connectivity issues during the opening session.

The rest of the day panned out broadly as we had expected. The mediator popped in and out of our room as the process of exchange of offers began. Each time we were ready and wanted the mediator to come into our room, we would call her on her mobile asking her to dial in. Alternatively, she would call and wait in the “lobby” until we admitted her into the “room.” The mediator did have some issues joining by video into our “private room” – she therefore dialled in by telephone. Clearly, that was not ideal, but equally it was not considered a major issue.

The “shuttle diplomacy” by the mediator appeared to work, although there was a perception that the stress testing may potentially have been hampered by the inability to do so face-to-face with all attendees from each side in one room.

Perhaps, more importantly, the biggest perceived weakness of the remote mediation appeared to be the lack of a “pressure cooker” environment that is usually created with all parties being physically together in the same building. Experience suggests that this intense environment is usually a significant factor in building momentum in a mediation, particularly as the day progresses, to achieve settlement. With parties being at home, and various opportunities and outlets for release being available throughout the day, this appeared at times to defuse the intensity, to slow down the rate of progress and perhaps encouraged a swifter desire to bring matters to a close than might otherwise have been the case (particularly given that one of our key client attendees was participating by telephone only). Staring at a screen extensively for over 12 hours was also remarkably tiring work.

From a practical perspective, the remote mediation was broadly effective. However, given the heavy reliance on technology, and young children and pets always being in relatively close proximity, there will always inevitably be certain unique challenges with a virtual mediation (although, arguably, I can see that these could also help to build rapport between the parties). One such unique challenge duly presented itself on the day. A mandatory IT update message appeared on my screen during the course of the mediation requiring a computer reboot. Fortunately, there was an ability to snooze the IT update each hour. However, 12 hours into the mediation, and umpteen snoozes later, a message appeared on my screen stating that a mandatory restart would now take place imminently. Almost synchronously it transpired that two of my colleagues had received a similar reboot message and had also been snoozing the IT update request throughout the day. Although we each dialled in temporarily from our phones until the IT update was completed, it was a good example of some of the unique and unexpected challenges that can be thrown up by a virtual mediation.

Overall, both our own experience, and that shared by the client team (who were all very experienced in mediations), was that while the remote mediation did fulfil a role in our case, and was likely to remain highly useful and important in appropriate cases, the reality was, unsurprisingly, that it was less effective than a face-to-face mediation may have been. However, as we adapt to the “new normal,” with greater emphasis on social distancing, remote mediations are likely to become the norm and there are important practical tips and lessons that parties should bear in mind to ensure the process is as productive as possible.

(Oh, and in case you’re wondering, the case did not settle at the remote mediation, but it did so a couple of weeks later).