Mediations in the Time of COVID-19: The New Normal?

One of the great virtues of mediation is the face-to-face contact. It can break down barriers, and help to dislodge an otherwise deadlocked dispute and lead to fast resolution. The shuttle diplomacy of the mediator, and one-to-ones with each of the parties, are often vital to unlocking areas of contention. The COVID-19 outbreak and the necessary social distancing measures that have come with it have made physical mediations impossible. That does not mean they cannot take place. As with so many of the challenges presented by social distancing measures, the answer is found in technology and litigators being willing to let go of a notion that face-to-face mediation is the perfect and recognise that an online platform mediation can be good and to be willing to try new. Some online platforms allow you to recreate the mediation setting in a virtual environment, with virtual breakout rooms and plenary sessions. If used effectively, virtual mediations can provide more flexibility around timing and attendance than physical ones, and save time and resources.

We have already had several settlement “meetings” using technology and we predict, post COVID-19, we will see a permanent shift to litigators / dispute resolution lawyers using online tools. Virtual mediations are arguably much better suited to our now much more global, mobile, and connected society, saving clients from having to jet in from different parts of the world, in turn mitigating the impact on the environment. Virtual mediations can also provide more time to consult and consider alternative options.

However, virtual mediations are not without their challenges. It is why lawyers need to become technology-friendly and technology-interested fast, if they are not already. Confidentiality and security will need to be carefully considered when conducting a dispute online with multiple participants in different places, possibly different time zones and with multiple non-parties in the participants’ households. We have seen in recent days press reports about confidential information (including privileged information) being discussed in an open forum by a lawyer and posted on social media. We have seen reports questioning the security of some of the online platforms. These practical issues need to be ironed out by the litigators organising the mediation in addition to preparing for the day itself. There will be a lot more frontloading at least in the early days as we all get used to the new norm.

Key is that the participants be willing to learn and adapt and being patient with the technology and each other. Feeling the temperature of the room is likely to be much more of a challenge in a virtual environment. A protocol for communication  should  be  set  out  at  the  start  to  avoid  participants  e.g. talking over one another or being drowned out by another household member’s violin practice or dog barking. A “dress rehearsal” with your clients and the mediator is also key so all get comfortable with the technology and new way of communicating. You will have to spend more time communicating  about communicating.

Even more so now one of the key preparatory steps is choosing the right mediator and one the parties can have faith and confidence will add value rather than just being a messenger. They are after all, in a unique position of confidentially being privy to the highs and lows of each parties' case and learning about the commercial drivers influencing them. By gaining almost, a whole picture, they can see the real gap between the parties and with thought and creativity can guide the parties beyond grandstanding towards creatively and flexibly bridging the gap.

As with all mediations, there is no 'one size fits all' approach to virtual mediations. However, the following are some general helpful tips we are employing if you are preparing for a virtual mediation.

What essential equipment do you need?

• A strong, secure, and private internet connection for your laptop/computer device. Do not use public connections.
• A secure video conference service provider such as Microsoft Teams Webex, ADR Group’s ADRg Express, Virtual Courthouse, GoToMeeting, or Skype for Business. Typically all platforms are available for free to register and join the mediation, although they may require the host or organiser to have a paid for the online account. The security requirements and protocols of each should be discussed with the mediator and the parties’ IT teams in advance.
• Which online platform to use is fraught with difficulties and judgment calls. Preserving confidentiality given the highly sensitive nature of the discussions is paramount. Liaising with your firm's IT experts to weigh the pros and cons of each online platform is key. Blind reliance on what the other side offer is not advisable.
• Brown Rudnick elects not to use Zoom. We use a platform that we have road tested to have security embedded deeply in the platform given the discussions will be highly sensitive.

What other equipment might be useful for you to have?

• A headset with a microphone.
• A double monitor.
• A stylus to mark-up documents on-screen e.g. an iPad pro with Word loaded on it.

How should you prepare for a virtual mediation?

• IT / Technology
  • Identify which platform you want to use, download the software in advance and become accustomed to the technology.
  • If the hardware to be used is issued by your employer, check with your system administrator if your system supports the software.
  • Be proactive and helpful with IT support for other participants so that they gain confidence in the system too.
  • Arrange an appointment for a run through of the technology with all parties and the mediator at least a week in advance of the mediation.
  • Have a plan B, in the event that technology should fail e.g a dial in conference call.
  • Make sure you have a professional backdrop behind you which is neat and de-personalised (e.g. no matter files for other clients). Some platforms allow you to create a customised backdrop that will prevent family members from inadvertently appearing in the background which could be distracting or embarrassing.
  • Ensure you have good lighting, are framed appropriately, and are at a suitable distance from the camera.
• Confidentiality
  • Obtain prior consent for any recording of the session or agree in writing beforehand that recording is not permitted.
  • Set the ground rules for the mediation to protect and preserve the confidentiality of the process and documents.  Consider amending the mediation agreement to provide for any special arrangements to preserve confidentiality e.g. that screenshots or photographs of what is happening on the screen are not taken.
• Parties
  • Consider who is most necessary to be present and keep attendees to a minimum and nominate who will act as the lead (ideally, the client decision maker).  This should be a consideration for all mediations but is particularly important in the context of virtual mediations.
  • Ensure that all parties identify their key decision makers and get them to commit to when they will be available.
  • Identify whether a party's participants are joining the virtual mediation on separate devices or together.  In the current circumstances, it will almost always be on separate devices.
  • Consider how the team will communicate off line especially in any open session e.g. via WhatsApp chat.
  • Pre plan the open session – who will say what and when.
  • Consider whether you need an expert or certain witnesses available to join the virtual mediation (by phone or on the virtual mediation platform) if necessary.
  • Discuss the location and environment of each participant. If international time zones are involved, consider the best time of day to conduct the calls for all parties involved.
  • Notify the mediator well in advance of the attendees on both sides.
  • The mediator fee is usually split in practice, but parties would need to agree this beforehand.  Extra time may be needed to facilitate payment in the current environment.
• Documents
  • Agree in advance how a settlement agreement will be prepared and executed (for example, via an electronic signature platform). Share e.g. an excel spreadsheet of the relevant numbers and a draft settlement agreement in advance with clients.
  • Consider using a tailored mediation agreement and process flow plan document so that the parties are clear about logistics, privacy, how the day will work and conclude. This should preferably be circulated and agreed a few weeks in advance of the mediation.
  • Agree a timetable and process for the preparation of the mediation bundle and position statements. Given the practical challenges of preparing hard copy bundles and delivering these to all participants (some of which may be based overseas), consider whether it is really necessary to prepare hard copy bundles or whether an electronic bundle will suffice. Think about setting up an online data room for access by the parties. It can be designed to give different access to different participants and is easy for parties to upload their submissions and core documents on to. We have used Tresorit.
• Interruptions
  • Raise any possible interruptions (for example, whether certain participants may have to leave the mediation for certain periods) prior to the mediation.
  • Mute your microphone when you are not speaking, so as to reduce background noise for the other parties.
  • Turn off notifications for emails, messages etc. on phone, laptops and other electronic devices, to prevent interruptions.

How can you structure a virtual mediation?

• Arrange calls with the mediator, your side and the other side as soon as you can in advance of the mediation. A significant amount of work may be completed in advance of the mediation itself. This should include the usual confidential pre-mediation call with the mediator, and an inter parties telecon with the mediator as far in advance as possible to discuss and agree the procedure and timetable to be adopted.
• Think whether you should move away from the one-day mediation model, splitting the mediation over two or more days to maintain energy and attention levels. Pacing is important as it may be more tiring using remote systems.
• Consider the timing of sessions and breaks - keep the parties clearly informed on logistics. 15 minutes every two hours or an extra-long lunch break could be used. Consider providing tasks for participants to complete during break sessions.

Click to view the full alert.

The views expressed herein are solely the views of the authors and do not represent the views of Brown Rudnick LLP, those parties represented by the authors, or those parties represented by Brown Rudnick LLP.  Specific legal advice depends on the facts of each situation and may vary from situation to situation.  Information contained in this article is not intended to constitute legal advice by the authors or the lawyers at Brown Rudnick LLP, and it does not establish a lawyer-client relationship.