Mediation but not as we know it: Working through COVID-19

Like most mediators I’ve been deep-diving and upskilling – honing my videoconferencing skills. In the pre-pandemic age, I conducted quite a few mediations by telephone or Skype or a combination of the two, but only where sums were small and parties were willing to move straight to the money.

Now all my mediations are online, and I’ve had to master the main videoconferencing platforms. My recommended platform is Zoom. “Why Zoom?” I hear you ask. “Is it secure? I’ve read the horror stories of uninvited guests and pornographic virtual backgrounds. I’ve heard that the boast of end-to-end encryption isn’t true!” Yes, but…

Zoom is the only platform I have found that truly works for mediations. Zoom allows you to create private “break-out rooms”, which are essential to the mediation process. It is also easy to use, fast and stable. I am not a data security expert, but I am satisfied that the widespread popularity of Zoom in the commercial market has resulted in the latter holding it to account more so than any of its competitors, and considerable Zoom resources have been directed towards plugging any remaining security holes.  I can say that I, as host, have full control over who enters the mediation. I also routinely prevent participants from using the platform’s facility for recording meetings.

Remote mediations work remarkably well. I was fortunate to receive superb comprehensive training from my chambers and have so far conducted five Zoom mediations all with overwhelmingly positive feedback. It’s a little spooky how similar to F2F it actually is! One participant joined from Dubai – seamlessly.

But unsurprisingly there is a definite reluctance on the part of both disputants and lawyers to give it a go. My advice? Give it a go! Download the software (Zoom and others; see which you prefer). Play with it. Communicate with your clients and legal teams with it. Familiarise yourselves with it. Look upon it as an opportunity to learn something new and take advantage of the new resources we have available to work more efficiently and conveniently.

Because the fact is that right now there is no alternative to remote mediations. Just like remote Court hearings. You may say that it’s better to postpone. Until when? Disputants need their disputes resolved swiftly, for a multitude of reasons. Litigation lawyers need to earn a living. So do mediators! I have no doubt that pretty soon someone will devise a platform tailored specifically to the needs of mediation. But right now, there are workable solutions and we should all be embracing them.

Here is some feedback from a recent Zoom mediation:

“The virtual mediation worked brilliantly.  I would definitely propose it again and, in the future, would advocate mediation via video to avoid people having to travel from across the world to attend face-to-face.

Alistair is a very effective communicator.  I particularly liked the way that he starts the mediation – it is very useful to know what to expect from him, in terms of his approach and how he might challenge the parties.  It then doesn’t come as a surprise.  Alistair is not afraid to get tough with the parties and sometimes that is just what a dispute needs.” Law Firm Partner – Mediation with Alistair Pye – April 2020.

If you are in any doubt about whether or not to postpone or mediate now, I’d be delighted to speak with you (either the lawyers or the disputants themselves) to share my experiences. Just pick up the phone and call me on 01225 891395 or 0776 66607 7779. After all, I’ve got plenty of time on my hands!