Mediation allows parties to engage in without prejudice discussions, with the assistance of a neutral and independent mediator, to work towards a mutually acceptable agreement that is binding upon both parties. Can it be as successful in a virtual setting, where parties meet via an online video conference?
Parties are invited to join a virtual mediation through a private and secure link which allows them to initially enter one 'virtual room'. The mediator, or their assistant, will control the process from that point onwards. They may facilitate introductions of all parties and attendees at that stage, but typically they will explain how the mediation will work and the proposed initial stages.
As with in person mediations, the process is completely flexible depending upon the parties' needs or preferences; and the mediator can organise the attendees into virtual 'breakout rooms'. This means that parties can meet with their legal representatives privately, or indeed in any other combination, with or without the mediator present. This includes the possibility of a plenary session with all attendees present, which many mediators will suggest at the start of the day to give the parties an opportunity to make an opening statement to set out their position.
Pros and cons
Clearly there are potential practical benefits in parties being able to attend a mediation from different geographical locations, at least in terms of time and expense. However there have been reports of virtual attendees feeling less engaged in the process; and some have perceived that progress has been slower because there is "less pressure" to get on with negotiations in the virtual setting. Others have seen negotiations move quickly due to the instant nature of virtual communication.
The truth is that an entirely virtual mediation might be ideal for resolving some disputes, but not others, depending upon the preference of the parties and what they might need from the process. Perhaps a blended option (with some, but not all, attendees physically gathered together) is more likely to become the new normal, especially as we adapt to a plethora of different flexible working patterns.
Top tips for virtual mediations
1. Identify parties' appetite for virtual mediation (and the stability of their internet connection). This will test whether parties are likely to remain engaged throughout. A test call ahead of the mediation should tease out any issues and pay dividends at the event.
2. If possible, each attendee should be encouraged to have their own individual screen. Good visibility of all attendees can be beneficial in discussions. The harder a party is to see, the harder it is to read their facial expressions or body language.
3. Allow for and clearly define comfort breaks. It is easy to forget that these are just as important during virtual mediations, especially as being on screen for a long period of time can be wearying.
4. Plan for possible "down time". Not all parties will require to be involved throughout the day so you may be able to give attendees the opportunity to step away, whether by turning cameras and microphones off, or physically logging out with a view to returning at a later stage. It would be useful to involve the mediator in discussing any such proposed arrangements, not least so that any attendees who leave the meeting can be swiftly readmitted when needed.
5. Arrange for an alternative method of communication with the mediator. It is not as easy in a virtual mediation for the mediator to 'knock on the door' to indicate that they are about to enter the room. This could lead the mediator entering a room at the wrong moment. Parties may also want to call the mediator back into their room. Setting up an instant messaging service or similar alternative with the mediator helps to avoid issues occurring.