As we all know, since the beginning of the global Covid-19 pandemic, much of the economy has shifted from the traditional office space to remote work environments. In the legal sphere, this has brought about numerous adjustments – and perhaps nowhere more so than in mediation, where the success or failure of the process is, almost by definition, predicated on the ability of parties to sit around a table and negotiate openly. While the challenges for mediators are numerous, I firmly believe that remotely conducted mediation can have its own advantages even over face-to-face meetings.
This article sets out what possibilities the remote mediation process can create for clients, and how it can benefit parties who are considering this form of dispute resolution for their own matter.
Perhaps the most notable benefit of remote mediation is the flexibility and comfort it affords clients. For an in-person mediation, parties often have to make time and travel arrangements, and can arrive at the session feeling hassled from the outset. For city firms in particular, it is common for parties to be left at the mercy of unpredictable public transport systems. Remote mediation mitigates this problem; the parties can attend the session from the comfort of their own homes.
Another subtle but important benefit is that remote mediation can help overcome an imbalance between parties which can be very apparent in face-to-face meetings, for example where one party is more legally or financially sophisticated than the other. This is a dynamic that can be managed by mediators to some degree, but the benefit of remote mediation is that it can strip away the inequities in these areas, as well as, say, physical stature or dress code. Clients have the platform to express themselves in a relaxed setting. They can better negotiate on a level playing field.
As a child-inclusive mediator, I am trained to involve children in the mediation process when parties discuss child arrangements. Particularly where young children are involved, the structured setting of face-to-face mediation can be intimidating; remote mediation allows children to feel comfortable in front of a tablet or computer that they are familiar with. Many of the current generation of children seem especially comfortable with an online medium so, in many cases, the expedited introduction of remote mediation has been quite beneficial.
The flexibility that remote mediation affords clients often goes beyond mere setting. One of the key limitations of in-person mediation is that parties are usually restricted to attending during office hours. For parties with specific constraints such as a shift-working pattern or long working days, the remote mediation process can be an avenue through which they are afforded a greater array of options. For example, mediation sessions can be held in the evening, which can appeal to clients with demanding jobs. Ultimately, as a big believer in the power of mediation, I would say any platform that can improve accessibility for clients has got to be a major positive.
The benefit of screens
Whereas many clients worry that a remote mediation process might inhibit the mediator’s ability to pick up on non-verbal cues in negotiations, this is not always the case. While it’s true that an experienced mediator can pick up on things like hand gestures and body language to gauge atmosphere, in a face-to-face meeting the mediator has to ensure that his or her attention is alternated equally between each party. In contrast, in a remote setting, the mediator has the benefit of seeing both parties on screen, side by side. This has the added benefit of alerting me to instances where the listening party is upset or uncomfortable with something that is being said.
The importance of setting
While remote mediation can provide the parties with greater comfort or structure, it is nonetheless important that the process is strictly confidential. The only people privy to the mediation should be the parties directly involved and the mediator themselves. The benefit of in-person mediation is that a private meeting room ensures the confidentiality of the service; this is not guaranteed when the process is conducted remotely.
To help ensure confidentiality, I always ask clients to scan the room with their camera, to ensure that no other person is in the room. This can often pose real difficulty for clients, particularly those who live with others. In one case, I had a client attend mediation from her car, as it was the only way she could guarantee any privacy. A mediator should therefore always stress the importance of confidentiality, and ensure that the parties are in a quiet setting with a closed door.
When discussing the possibility of remote mediation with clients, it is understandable that many are sceptical. Some of the topics discussed in mediation are amongst the most complex in life – particularly in cases involving children and finances. Most clients intuitively feel that having the parties gather in the same room at the same time should be a prerequisite for negotiations. For experienced mediators, however, the remote experience does not need to be a lesser form of mediation; indeed, it can be replete with its own advantages.
While the Covid-19 pandemic has created a number of challenges, it cannot be denied that it has accelerated numerous trends and driven innovation in our working environment. I very much see remote mediation not as an interim measure, but as a core component of mediation going forward; for many clients, it will continue to be the superior option. Indeed, remote mediation can provide an easy solution to some of the challenges experienced when trying to organise a meeting with two people in the same room, at the same time, and on equal footing – and provide the mediator with additional tools to better facilitate open and co-operative negotiations.