Before the mediation
In part 1 of this article we considered the issues and opportunities that arose from the move to online mediation demanded by social distancing and the impact that has and will have on the mediation process. We introduced the concepts of asynchronous and asymmetric mediation. In part 2 we turn to the operations side and the practical issues to be considered before a mediation.
Mediation is above all what the parties want it to be. There is no procedure (save that the parties will be required to sign the mediation agreement before commencing), rules (save one exception below), order of events with which the parties need to comply. It is up to the mediator and the parties to decide. The mediator has a lot of discretion about the process and would lay out a proposed procedure to the parties but it is they who should finally determine how it is to be run.
A traditional mediation would involve agreement on exchange of notes on each side(s) position(s), exchange of relevant documents, pre-meetings between the parties and the mediator, “on the day” opening joint meeting, meetings between the party(s) and the mediator including further possible joint meetings, agreement (if possible), written and signed settlement agreement and completion.
All of this may still be part of an online mediation. One of the biggest differences between a physical and an online mediation is that from the completion of the first (joint) meeting, the process can be staggered over a longer period than one day with the consequences that the parties do not have to gather and then remain in one place for the mediation for one full business day or longer.
Indeed, it may also mean the parties need not have to all be present when the mediation commences. Ideally, it is better for all participants to be present for the opening. After that is completed, an online mediation gives the parties so much more flexibility, not to mention costs savings, since they no longer need to wait and physically gather for their “turn” to meet the mediator and consequently can get on with their “day jobs” when they are not needed for meetings.
There are important implications for the process once one appreciates what this flexibility means – the parties no longer need to clear their diaries for travel and a full day or more attendance at the mediation and can slot in meetings with the mediator in much the same way as they fix other meetings.
Once this physical straight jacket is removed, mediations maybe arranged to take place at short notice – because not only do the parties not need to travel, to set aside a full day for attendance but they may arrange further meetings (including joint meetings) as and when they are needed by the mediator and when it suits their diaries.
Pre-mediation: Planning, preparation and papers
Planning is very important with online mediations. The opportunity for a party to disengage or for momentum to be lost is perhaps greater. The “off switch” is easier to click metaphorically and maybe more challenging for the online mediator to re-engage where one can’t physically enter the room and require attention.
Pre mediation discussions
By far the most important step in the pre-mediation process is for the mediator to speak with the parties or their representatives. If this process is conducted proactively by the mediator a lot of progress may be made towards a solution even before the parties have met. The mediator will want to ascertain what the parties hope to achieve by the process and will want to test the practicalities of this against each party’s case and evidence.
The outcome of these discussions should be that the mediator has a clear idea of the parties expectations, the strengths and weaknesses of each sides’ position and above all how, if at all, it may be possible to assist the parties to reach an agreement. These contacts will be used to agree the timetable as well.
One element to be aware of about the online process and which remains to be evaluated is what if anything is lost by the fact that parties will not be meeting in a physical setting? How does one form a rapport with someone, over say Zoom, and will this prevent any positive chemistry developing between the mediator and the parties and in particular the protagonists? The mediator’s role includes helping the parties to present their offers to the other side. Will a virtual setting hamper this? One can certainly see the parties “up close” but is this the same as the atmosphere in a room full of people where the interaction may change the dynamic? All participants should be aware of this and work positively in their engagement with each other and the mediator to address this. Body language, active listening and patience will still be necessary in an online setting and perhaps more so. This is another reason the parties including the mediator must put a lot of time and thought into pre mediation discussions.
Who should attend – clients and decision makers, legal representatives, other parties – counsel, experts.
One immutable rule of mediation is the decision maker (usually the client) must attend with the requisite authority on settlement and both the mediator and the other party(s) would be rightly reluctant to spend time in a negotiation when the person with authority to settle the matter is not present.
Not only will the decision maker be required to approve any agreement but often it is the decision maker who provides the impetus for the agreement by expressing a desire to cut through objections, legal issues and focus on the big picture. (Many a lawyer has watched aghast as their carefully crafted case has been swept aside by a client who can see the finishing line and wants to get there even if it means abandoning claims or defences, part of the claim sum etc.)
However, given the mediation is taking place remotely and everyone is attending online, the decision makers will only need to attend joint meetings (certainly the opening one) and when the mediator is meeting their side’s participants. This can afford flexibility on meeting dates and timings.
In many, but not all cases, the client will want their legal adviser (in house or otherwise) to attend as well. It is ultimately for the client to decide who and how many should attend, though the fewer who do, the easier it is to fix mediation and the subsequent meetings. Whilst lawyers can on occasion be hard to move from arguing their client’s positions, pre-mediation meetings with the parties lawyers can help to understand the issues and the barriers to resolution and who may need to attend. Legal advisors will bring an insight to the dispute and they should actively engage with the mediator.
Too many participants could mean delays in fixing the mediation because of the need to coordinate diaries but the use of remote mediations means a party can schedule a third party adviser – say an expert or counsel – to attend a particular meeting of the group and mediator and then not to have to attend again. Whether such third parties have a role in mediation is a matter upon which there is much debate and the parties must decide what they consider is best for their case.
Since mediation is confidential and those attending should all sign the mediation agreement there should be provision for the mediator to be satisfied as to who is in each session and that there is no-one attending “off screen”. One suggestion is for the parties legal representative to state who is attending and to provide the mediator with details of who is attendance at each meeting and that no one else is “present”.
Submissions and Documents
There is no right approach but a light touch on submissions and documents is recommended. This may not work for larger more complicated cases but by and large many mediations are around key issues and it ought to be possible to give the mediator the full picture without too many documents.
The position paper is as important online as in traditional mediations. Parties should remember that position papers are not pleadings of their case nor skeleton arguments. A succinct document explaining the key facts, important evidence, stage of the litigation, offers and a party’s perceptions of barriers to settlement is of huge assistance to the mediator and often conveys the message that the party is embarking on the mediation in “good faith”. Parties should also provide a document outlining the legal costs incurred to date and the likely costs to be incurred if mediation is unsuccessful.
This is not the place for a review of the role that legal costs can play in encouraging settlement but it should not be overlooked that the reason for mediating is often to stop costs being incurred or that one of the parties to the dispute is likely to suffer a very large exposure to costs if their claim or defence fails. Parties often down play the costs they have incurred or will incur to avoid giving away too much information on their exposure and or what work they have done. Mediators should try and ascertain the true costs position as it may play a part in encouraging settlement.
There is a tendency for parties to give the mediator and the other party a lot of paper (often rarely referred to in the mediation setting) in the form of notes and documents. In a remote setting, if the parties want to move quickly and where everyone is likely to be viewing documents on line (at least in these lockdown times) the less that is exchanged the better.
Technology (understanding the use of this and agreeing the platform for the remote service) and managing the mediation
A lot has been written about technology in a remote setting. (CEDR has produced some very helpful guidance – CEDR.Com.) Much of the popular software including Zoom and software from Google, Microsoft etc is fit for purpose in most cases.
It is recommended also that parties consider using a third party service to manage the back end of the process where larger and or multi party meetings are envisaged. In straight forward matters, with one joint meeting, followed by separate meetings with the parties, the mediator maybe sufficiently competent and happy to operate the process.
It is important that everyone knows how the mediation is going to “work” (joint meetings followed by separate meetings etc), agrees which software will be used and has tested this to be satisfied they know how to undertake the necessary functions at their end. A pre-mediation demonstration to participants of the functionality of the platform will help to build confidence in the platform and the mediator.
A back up to the chosen conferencing system is recommended so at least the mediation can continue by voice, if wireless is lost by some of the parties. (it is advisable that parties exchange telephone numbers in case the mediation has to switch to “voice”.) Internally, as the parties will be across various locations they should also agree how they will communicate intra party e.g. by video, group text or email or voice.
Everyone should be careful to ensure that they first check the other party is not on line before they commence any meetings.
Timetable for asynchronous mediation
This is key to a cost-effective speedy process. Since the parties are not gathering at one venue, the only date that must be agreed by all parties is the day the mediation is to commence and if this will be by a joint meeting of all parties.
All further meetings will be by agreement with the parties and all diary scheduling can follow logically from the mediator’s proposals for the process. This is again the advantage of an online mediation – with no need for physical attendance there is maximum flexibility on the scheduling of meetings.
It would be sensible for the parties to assume meetings with the mediator will follow the joint meeting and keep their diaries reasonably open or other appointment flexible to accommodate such meetings.
The mediator will require the parties to sign the agreement before commencement – on the day is no longer appropriate. The agreement will depart from those relevant to the traditional mediation as it will be providing for the online process.
The mediation in fact commences when the pre mediation discussions take place and may complete on a different day. The mediator may wish to make arrangements for their fees to reflect the different split in the time involved in asymmetric mediation as opposed to their fees being spilt equally as is usually the case.
I was very pleased to co-author this article (and Parts II and III) with Marcus Bowman, a CEDR panel mediator who is practising from Quadrant Chambers. We wrote separately and found we agreed on almost everything – no doubt reflecting more than half a century of combined experience working as litigators and as Managing / Senior Partners of our two firms in EC3.