I confess I was initially sceptical about the possibility of a remote mediation. It had always seemed to me essential to a successful mediation to get all the parties into one place and go through the hard yards of working through the issues, the rounds of negotiation, the impasse and then the breakthrough that characterises most mediations. How could this be achieved remotely?
Having now participated in a (successful) remote mediation, my views have changed.
Zoom is now established as the ideal platform for remote mediations. It is possible for the parties to have their own breakout rooms, to come together for plenaries, and for the mediator to shuttle between them, emerging like a genie onto one’s screen when his presence is sought.
But what of the experience of mediating remotely? These are my thoughts:
Before the mediation
As with remote court hearings, thorough preparation is essential. I have always thought that advocacy is 90% preparation and 10% perspiration, but when a mediation is proceeding remotely, preparation is if anything more important. I don’t just mean agreeing the bundle and drafting the position statements; I mean preparing the client and making sure one understands one’s own case. In this instance, on the day before the mediation I spent several hours online with my client and expert forensic accountant, making sure that I understood where we were at in our valuation of a solicitor’s negligence claim, and how the various heads of loss could be proved and calculated. This proved invaluable on the day of the mediation. It enabled us to make quick decisions when we had to decide when to hold the line and what concessions we could make.
In a conventional mediation, the plenary at the beginning of the day is critical. It is your one opportunity to speak directly to the party on the other side without the intervention of their lawyers; it is also the time when, using your voice and body language, you can emphasise the strength of your client’s case and negotiating position. This opportunity is largely lost in a remote mediation. The other side is of course present, but it is difficult to make the kind of impact that one can make sitting on opposite sides of a table. My recommendation is to keep the presentation down to a few key points and to speak for no longer than five to ten minutes. This, of course, emphasises the importance of the position statement.
The breakout room
Meetings in the room, both with and without the mediator present, seemed to go smoothly. Again, it helped that we had talked everything through the previous day. One amusing feature was that although we could press a button and summon the mediator, there was no corresponding feature that allowed him to knock before entering our room, so he tended just to materialise on our screen when we were in mid-discussion and had to be asked politely to leave.
One of the most fatiguing things about normal mediations is the feeling of being cooped up in one room with your team all day. By 5.00 pm, you have normally run out of small talk and have definitely eaten all the biscuits. One thing that I wasn’t anticipating but which turned out to be a positive advantage was that, since we were all at different locations, we could dip in and out of our meeting room when things were quiet, or go off and make lunch or a cup of coffee. In consequence, I didn’t feel as drained as I normally do at the end of a mediation.
The process of negotiating went very much as it always does: sharp intakes of breath at the “unreasonable” first offers, a gradual narrowing of the gap, and then finally a horse trade on the fourth or fifth round of offers, at which point both sides had moved well out of their comfort zones to achieve a settlement with which all were equally unhappy. A typical mediation then.
Settlement was straightforward, with the parties emailing drafts to each other. I had, as I always do, prepared a draft settlement agreement in advance, since no-one wants to be starting from scratch at 7.00 pm after a long day of discussions and negotiation.
One final thing: dress code. We had some discussion about this with the mediator the day before and settled on smart casual. I in fact started out the day wearing a tie, but had lost it by early afternoon. My client was in a t-shirt. As it happens, while I started the lockdown by dressing formally for all my client meetings, with the exception of court hearings of course, I am now fairly casual most of the time. Nobody seems to mind. The new normal.
All in all, I can wholly recommend remote mediation. With proper preparation and making sure before the day that that the client, their expert and lawyers are all on the same page, it can work as well as conventional mediations which bring everybody together in the same place. As with many things that we have learned during these last few weeks, we may well find when the lockdown ends that we have changed our way of working permanently.
This article first appeared in Practical Law.