The Courts are increasingly busy dealing with a backlog of pre-Lockdown cases and also an influx in new claims being issued. This is resulting in long delays in applications being processed and hearings being listed. Parties involved in a dispute should therefore consider whether matters could be more easily resolved by way of Alternative Dispute Resolution (ADR), including mediation.
Following our introductory article on what ADR is, we will be focussing on mediation and whether it is a viable option even when social distancing measures are in place.
What is mediation?
Mediation is the process whereby parties, with the assistance of a neutral third party (the Mediator), identify the issues in dispute, explore the options for resolution and attempt to reach a settlement.
The Mediator will be an independent third party whose job is not to decide who is right and wrong, but to listen to the parties’ concerns and see whether matters can be resolved by way of agreement.
How has Lockdown affected mediation?
Social distancing during Coronavirus has challenged the traditional model of mediation. Normally the parties will each have their own room in the same location and the Mediator will go between the rooms speaking to each of the parties in turn.
In response to the Lockdown restrictions, many Mediators are now offering the option of remote mediations whereby the mediation will take via Zoom, Skype or WhatsApp.
How does virtual mediation work?
The Mediator will set up the meeting and will normally have an initial call with all of the parties to explain the mediation process and what is involved. The Mediator will then speak to each of the parties individually via video call.
Similarly to a face to face mediation, the Mediator will be able to share information and documents with the parties (either on screen or by email).
Depending on the number of parties involved, the Mediator may use a WhatsApp group or another online platform to let the parties know where they are at any particular time and to provide indications on timeframes of discussions.
What are the advantages to virtual mediation?
As set out above, many Courts have limited administrative capacity at present which is slowing down the claims process. Whilst getting to trial could take in excess of 12 months in the current climate, a virtual mediation can be organised in a matter of weeks (if not days).
Mediators are offering competitive rates for virtual mediations. In addition, costs are likely to be lower if the parties and their legal representatives are not having to travel to a neutral location.
What are the disadvantages?
Lack of rapport in virtual space
In our experience, the most successful mediations are ones when the mediator is able to build trust and rapport with the parties involved. This can be harder over an online platform.
The initial feedback we have received from our mediators is that virtual half day mediations have not been as successful as full day mediations to date. This is on the basis that it can take time for the parties to log in and/ or resolve any IT issues.
It is important that you check that your IT facilities are appropriate to allow you to be involved in the mediation (i.e. internet speed etc.). Unfortunately, unexpected technical issues can arise no matter how prepared you are.
Do I have to mediate?
Both the Courts and the government are increasingly encouraging parties to engage in mediation. Whilst parties cannot be forced to engage in mediation if they do not wish to do so, there can be costs and implications of refusing (or ignoring) an offer to mediate.
The Cabinet Office has recently issued guidance in respect of responsible contractual behaviour in the performance and enforcement of contracts impacted by the Coronavirus emergency. In particular they have encouraged parties to display responsible and fair behaviour when considering whether to mediate and when responding to requests to mediate.
Here at Stephens Scown, we have a number of lawyers who have are accredited mediators. We are therefore well placed to represent our clients at mediations because we have an enhanced understanding and knowledge of methods that mediators will employ to encourage the parties to reach a settlement.