Covid-19: Without prejudice meetings and mediation during the crisis


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In light of current and evolving Government restrictions, parties are also having to adapt how they resolve their disputes. Just as parties to litigation will have to get used to remote court hearings for the foreseeable future, we are seeing an increased use of video conferencing platforms such as Zoom to enable parties to facilitate without prejudice meetings and mediations on a virtual basis.  

Previously, many advisors and their clients may have been sceptical about whether technology could be an effective replacement for the face-to-face meeting of parties in a traditional mediation or negotiation room context, even though some mediators were already offering a virtual service.  However, in view of the positive feedback to date and the need for mediators and practitioners alike to be more reliant on remote ways of working, virtual mediations and settlement meetings are likely to become more commonplace.  
There are many advantages to attending a mediation or settlement meeting virtually: 
  • the parties may have greater availability if they do not need to travel to a central venue;
  • not having to pay travel and venue costs are also an obvious saving for the parties;
  • all that parties will be required to have in order to engage in the mediation or meeting will be access to a computer or phone with a camera with the appropriate software which is readily available; 
  • the ability to see the other party on the screen, compared with a telephone call, could make a real difference in the parties being able to communicate effectively with each other and reach a settlement; and
  • meeting remotely can help to take the heat out of interactions between principals.
How would a virtual mediation or without prejudice meeting work in practice?
Technology to facilitate resolution of disputes using video-conferencing is widely available, easy to use and can closely replicate the format of a physical settlement meeting or mediation.  For example:
  • Video conferencing facilities (such as Zoom) are well set up to replicate the normal physical attendance of the parties and the mediator / meeting host, even though that attendance is by screen from their respective locations;  
  • "Practice runs" can also be arranged and are advisable between practitioners and clients before the scheduled meeting or mediation, so the clients can get used to the format of the virtual meeting; 
  • In terms of the number of parties, numerous / multiple parties can be online in attendance at the meeting or mediation;  
  • The mediator or host of the meeting can designate separate break-out rooms for the parties as well as a virtual roundtable to bring the parties together; 
  • The parties can contact the mediator or host at any time from their breakout rooms to ask for the mediator's input and the mediator can, via the controls, pass between the virtual "rooms" in turn and as and when appropriate, just as they would do in a physical mediation;    
  • The technology allows for privacy (via muting of audio and the camera function) as required and the sharing of documents between the parties and with the mediator using the screen-sharing facility; and
  • The quality of the video allows for important factors such as body language to be conveyed almost as effectively as in a physical meeting or mediation and allows for the same interaction between the parties and the mediators together in both the round table session and individually.  
Notwithstanding the current lockdown situation, the need to assist parties with resolving their disputes effectively will continue.  With uncertainty as to when the current restrictions will be lifted and disputes arising as a result of those restrictions, the use of video-conferencing and other technology will only increase.  In addition, when "normal service" resumes, it is likely that waiting times for court hearings may be lengthy and so the opportunity to explore the resolution of disputes virtually in the meantime, is another benefit.  
It is also possible that life "AC" (After Coronavirus) will bring with it the continued use of such technology, particularly in light of the flexibility and cost savings to be made and the changing work patterns practitioners and their clients will have become accustomed to.
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