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Virtual mediation – the ‘new normal’?

For a long time now, parties to a dispute have been actively encouraged to resolve their differences out of court. Indeed, the ancient practice of talking to your opponent and settling a dispute over the phone has now morphed into an ADR (Alternative Dispute Resolution) industry with many formalised methods of dispute resolution: mediation, early neutral evaluation, expert determination etc.

The topic of settling out of court has taken an interesting turn recently in two ways: on the issue of whether a more conciliatory approach ought to be taken by everybody given the pandemic crisis, and within that, the role that technology can play in enabling that: “virtual mediations”.

Interestingly, where the current need for collaboration at all levels of society is almost instinctive, the issue of what the legal sector could do to safeguard commercial activity, minimise disruption, and aid global recovery, was the subject of recent discussion involving leading academics and judges, Lord Neuberger and Lord Phillips. In the discussion it was recognised that contractual disputes can damage the economy, disrupt supply chains and services; there is a perceived risk that the pandemic will also bring increased litigation and that there will be increased pressure on the courts.

As the mood of emergency legislation to date has been to try and facilitate ongoing relations, wasn’t it better for everyone to preserve commercial relations and resolve differences amicably; keep contracts going rather than end them in anger?

Were leading judges suggesting that it was better for parties to avoid court and turn to mediation, where the outcome for both can at least be controlled?

Parties cannot be forced to mediate, and not all cases are right for mediation, but there are potential costs penalties against parties that unreasonably refuse to mediate.

Mediators have been very quick to promote virtual mediation and its use is turning into the “new normal” in ADR. In a “normal” mediation the parties may meet in an open session to begin with, and then withdraw to breakout rooms where they are then visited by the mediator who shuttles between the two, seeking to broker a settlement.

The Zoom platform for example (and it is not the only one) allows a waiting room and breakout rooms which can and are being used to carry out mediations as we speak. This allows solicitors and their clients to communicate confidentially with each other, as well as openly with the mediator. This is aided by trusted methods like a mobile phone and email, WhatsApp etc.

The new normal is that court cases and alternative dispute resolution are continuing – almost – as before, as virtual reality.

This begs the further question, is it unreasonable to refuse to mediate remotely?

There is no case law at the moment on whether a refusal would be unreasonable. It is likely though, given the enthusiasm with which the courts have embraced virtual hearings since lockdown, that when the first decision on this point is reported, the judges will be saying that they see no reason why virtual mediations should be refused.

We always encourage ADR wherever appropriate to a case, and indeed, in the current pandemic, we are encouraging the use of modern technology to mediate.

For more advice and information, see our legal guide: Understanding Mediation and Alternative Dispute Resolution

Ian Williamson is part of our highly experienced Disputes team and is one of a number of trained specialists at Wards who will be happy to advise you further about the process of online mediation. He can be contacted at Ian.Williamson@wards.uk.com or on 0117 929 2811

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