There will undoubtedly always be cases where meeting in person remains an important element in resolving a dispute, particularly during mediation where interpersonal relationships often contribute to successful outcomes. However, access to platforms which support remote and virtual dispute resolution procedures will provide a cost effective alternative for many in the current economic climate, and may appeal to businesses seeking to reduce their carbon footprint where mediating in person would require international travel.
We are already seeing remote mediation evolve as both mediators and parties to successful mediation learn from their experiences since the outbreak of the pandemic, and we expect this to continue. However, the convenience alone of virtual platforms should not dictate their use, and litigants will be looking to their legal counsel to advise them on the appropriate format for dispute resolution forums relevant to their specific case.
Mediation is a central feature of dispute resolution. A well-implemented mediation can bring an end to longstanding disputes, avoiding the uncertainty of an errant adjudication decision, arbitral aware or court judgment in a cost effective manner. Mediation can cut through entrenched positions and encourage parties and their legal advisers to take a step back and focus on their ultimate goals, and may allow for the continuation of business relationships that have otherwise disintegrated.
Over the past year, parties, solicitors and mediators took to online remote mediationby necessity, and often in place of already-planned in-person mediations. Despite some initial concerns and scepticism particularly around privacy and security, suitable conferencing platforms and the likely effectiveness of any remote mediation the uptake in remote mediation since has been impressive. Indeed, mediators have observed that despite their anticipation of a rather quiet year, what has actually transpired has been the opposite.
Initially, parties generally defaulted to the traditional structure of a mediation day, only hosted on an online platform or platforms. This often involved the standard opening plenary session, followed by the mediator shuttling between the parties in their own virtual breakout meeting rooms until a settlement was reached, or not. However, remote mediations have evolved considerably over the past year, and are continuing to do so.
On the pulse mediators have been quick to issue updated terms and conditions, revised mediation agreements and protocols for dealing with remote mediations. They have also been able to get quickly up to speed with some of the available technologies, allowing them to help guide parties through the process.
Although preparatory groundwork is already a feature of many successful mediations, mediators are required to do more of this in advance of remote mediations reading papers, understanding the issues and speaking with the parties to understand their aims and needs. Additionally, mediators are now more often staying involved with mediations after the mediation day itself has ended, with ongoing follow-ups and shuttling between the parties on issues and potential settlement deals.
These factors are impacting the parties choice of mediator. As well as reviewing a mediators general credentials and specialist knowledge in a particular area, parties should also be considering the mediators proactiveness in advance of the mediation day, their confidence with the technology, their ability to actively facilitate the mediation process, and their effectiveness in following up and driving parties towards a settlement.
A shift away from the traditional assumption that mediation should be a one-day event had already begun to take place prior to 2020, with efficiencies and alternative ways of conducting mediation beginning to emerge.
In some instances, this has taken the form of a series of shorter mediations, spreading over a few days. Dispensing with the opening plenary session with the mediator instead conducting pre-meets with each party before then shuttling between the parties now occurs, sometimes over the course of days or weeks, to try to reach a deal. This can offer greater scheduling flexibility and be less cumbersome for busy professionals than the traditional mediation taking place in person over a long single day. This can also sometimes mean that mediations can be arranged, and so disputes be resolved, at an earlier stage than would otherwise have been the case.
Fully remote mediation has in some instances been replaced with hybrid mediation, coupling in-person appearances with remote appearances. For example, one team might gather together so that they can strategise face to face, but communications with the mediator and other party take place remotely. We are likely to continue to see this, particularly where geographical restrictions apply or due to personal preferences. Questions can arise as to how to achieve a level playing field, and these need to be considered and navigated with care.
Finding the right technology with which to conduct a virtual mediation remains an issue, although this is improving. Existing platforms have introduced enhancements since the early days of the first lockdown including increased security features; greater provision of breakout rooms; participant hand-raising; and the ability to rearrange participants in gallery view so parties can be usefully grouped.
However, the technology is still not always altogether smooth. For example, some participants are prohibited from using certain platforms due to company information security policies, which can cause problems where a mediator has a preference or requirement for that platform to be used. While it is workable, and relatively common, for different participants in a mediation to use different platforms for their private rooms, mediation tends to proceed more smoothly if all participants are using different rooms within the same platform. We may see the development or growth of new or improved platforms tailored more closely to the requirements of mediation. Such platforms could also be adapted to other forms of ADR.
Whatever technology is used, the mediator must be in control of, and confident and comfortable with, the chosen platform if the mediation is to be truly effective. Background interruptions from children, pets and postmen remain rife during mediation, along with the usual technical difficulties which can kill momentum. While all of these issues can be addressed for example, by switching to a backup technology option pre-trialled by the parties they are not ideal.
There are also benefits of in-person mediation which cannot easily be replicated in an online format, including being able to observe participants non-verbal communication and in passing interactions. This can be addressed to some extent by insisting that participants keep their cameras on at all times, but seeing faces in boxes on a screen is not the same as in-person physical interaction.
Now that more mediations are taking place remotely, it is becoming a more attractive option in cross-border disputes as it avoids the need for participants to travel. After being shown to be effective, we envisage that remote mediation will continue to be a feature of international dispute resolution even once travel restrictions are lifted. Not only is it more convenient and less costly for parties, but as pressure grows for businesses to consider climate change, they are likely to question more often whether the benefits of an in-person mediation outweigh the impact on their carbon footprint of international travel.
Indeed, mediators may begin to suggest remote mediation solely for reasons connected to climate change. A number of mediators have now signed the Mediators Green Pledge committing them, among other things, to encouraging parties to consider the necessity of participants attending mediation in person if that would involve significant unnecessary travel.
Remote mediation may not be appropriate for larger, more complex mediations involving multiple parties and experts across various jurisdictions and time zones however, with detailed planning in advance and implementation of protocols, alongside the technological advances seen over the past year, such a mediation is not impossible.
As parties become more creative about the way remote mediation is used, we may see further innovation.
One quick, cost effective option, which may be attractive to businesses for certain disputes in the current climate, is a stripped back, bare essentials form of mediation involving blind bidding. This dispenses with many traditional features of mediation such as position papers, plenary sessions and one-to-one meetings with the parties in favour of email and a pre-agreed number, usually three, of bidding rounds.
The parties appoint a mediator as usual and issue their confidential bids in round one directly to the mediator. If there is a match, the figure is revealed and the process ends once a settlement is executed. If there is no match on the figures, the parties proceed to round two. If there is still no agreement, in round three the mediator will either announce a match or confirm whether the parties are within a specified range. Even where no resolution is ultimately reached, parties should emerge from the process with enough momentum and impetus to move on to a more formal mediation process to finalise the issues between them.
Blind bidding mediation is particularly useful for pure money disputes for example a traditional final account dispute in a construction contract, or a dispute over costs. However, in principle, bidding rounds could also relate to offers to remediate a defect for example, as opposed to money offers.
In more complex disputes, involving difficult technical issues and numerous legal debates, parties may still prefer more traditional mediations. Parties may also struggle to come up with settlement figures in a vacuum, although facing such questions will force businesses to focus on what they genuinely want and need in order to settle the dispute. Uptake of this idea will also depend on whether courts will regard the process as sufficient for a party to avoid the cost consequences of refusing to mediate.
Co-written by Emilie Jonesof Pinsent Masons.
Visit link:
Further evolution of remote mediation expected post-pandemic - Out-Law.com
- Days of our Lives' Suzanne Rogers on the Evolution of Maggie: "She Knows Who She Is Now, and She's Not Relying ... - Michael Fairman TV - March 14th, 2024 [March 14th, 2024]
- Kylie Jenner Talks About Her Style Evolution - The Cut - March 14th, 2024 [March 14th, 2024]
- Equator Coffees Unveils New Packaging Design, Reflecting Brand Evolution & Vision For The Future - Sprudge - March 14th, 2024 [March 14th, 2024]
- Rosewood Hotel Group Accelerates Growth And Evolution Across Its Four Distinctive Brands - Hospitality Net - March 14th, 2024 [March 14th, 2024]
- Thomson Reuters Unveils New Brand Evolution - Adweek - March 14th, 2024 [March 14th, 2024]
- Is It Becoming Acceptable to Speak of Design? - Discovery Institute - March 14th, 2024 [March 14th, 2024]
- Did Charles Darwin Convert to Christianity and Discredit Evolution on His Deathbed? - Snopes.com - March 14th, 2024 [March 14th, 2024]
- Milk, it's not just for mammals: An amphibian makes it too - NPR - March 14th, 2024 [March 14th, 2024]
- Discover Puerto Rico Debuts Evolution of Its Successful 'Live Boricua' Brand Campaign Aimed at Engaging Visitors ... - Yahoo Finance - March 14th, 2024 [March 14th, 2024]
- A Journey Through Time: The Evolution of Ras Al Khaimah Art - Business Wire - March 14th, 2024 [March 14th, 2024]
- Empowering Women: The Evolution and Innovation of coto Social Platform - CXOToday.com - March 14th, 2024 [March 14th, 2024]
- The Evolution of Da'Vine Joy Randolph - The Root - March 14th, 2024 [March 14th, 2024]
- Study on mating behaviors offers clues into the evolution of attraction - Phys.org - March 14th, 2024 [March 14th, 2024]
- Dragonball Evolutions live-action Goku says goodbye to Toriyama: Sorry we messed up - AS USA - March 14th, 2024 [March 14th, 2024]
- Investec, evolution of SMEs in the materials handling sector - Leasing Life - March 14th, 2024 [March 14th, 2024]
- Pride & Prejudice and the evolution of the female gaze on screen - Yahoo News UK - March 6th, 2024 [March 6th, 2024]
- Joe Wong's Musical Evolution - Shepherd Express - March 6th, 2024 [March 6th, 2024]
- A global survey of prokaryotic genomes reveals the eco-evolutionary pressures driving horizontal gene transfer - Nature.com - March 6th, 2024 [March 6th, 2024]
- Redefining Intelligence: Chimpanzees Break Through the Cultural Evolution Barrier - Medriva - March 6th, 2024 [March 6th, 2024]
- Mollusk Eyes Reveal How Future Evolution Depends on the Past - Quanta Magazine - March 6th, 2024 [March 6th, 2024]
- Levy Delves Into the Evolution of ADCs in NSCLC - OncLive - March 6th, 2024 [March 6th, 2024]
- The Snake Is The Spearhead of Reptile Evolution, But Why? - ScienceAlert - March 6th, 2024 [March 6th, 2024]
- 'A very special day: Birds linked to Darwins theory of evolution reintroduced to Galapagos Islands - Euronews - March 6th, 2024 [March 6th, 2024]
- Why the Powerhouses of Cells Evolve Differently in Plants - College of Natural Sciences - March 6th, 2024 [March 6th, 2024]
- Driving the DevOps Evolution: ArgoCD, Tekton and Seamless Migrations - DevOps.com - March 6th, 2024 [March 6th, 2024]
- Finding the Balance: The Evolution of Public Health Guidance Amidst Controversy - Medriva - March 6th, 2024 [March 6th, 2024]
- Insider Podcast: Paolini dishes on her Polish roots and hard-court evolution - WTA Tennis - March 6th, 2024 [March 6th, 2024]
- Interview: Sara Gruen and Rick Elice Talk About the Inspiration and Evolution of the New Musical Water for Elephants - TheaterMania.com - March 6th, 2024 [March 6th, 2024]
- The Evolution of the Laravel Welcome Page - Laravel News - March 6th, 2024 [March 6th, 2024]
- A Serpentine 'Explosion' 125 Million Years Ago Primed Snakes for Rapid, Diverse Evolution - Smithsonian Magazine - March 6th, 2024 [March 6th, 2024]
- The Evolution of Modern Technologies in Car Development - FinSMEs - March 6th, 2024 [March 6th, 2024]
- Milwaukee Transformed: From Bronzeville to Veterans Park, Aerial Timelapses Reveal City's Evolution - BNN Breaking - March 6th, 2024 [March 6th, 2024]
- The eyes are a gateway to evolution of daddy longlegs at least. - University of Wisconsin-Madison - March 6th, 2024 [March 6th, 2024]
- Adrian Newey: RB20 is the next step in Red Bull's design evolution - PlanetSport - March 6th, 2024 [March 6th, 2024]
- LiveScore releases its 'Evolution of Fan' report - Gambling Insider - March 6th, 2024 [March 6th, 2024]
- The loyalty program evolution makes its way to the full-service restaurant category - Nation's Restaurant News - March 6th, 2024 [March 6th, 2024]
- Teenage Mutant Ninja Turtles: The Last Ronin II - Re-Evolution #1 spoiler-free review: goes hard on the action, but ... - Gamesradar - March 6th, 2024 [March 6th, 2024]
- Exploring U.S. Financial Evolution: DAR Hosts Talk on Federal Reserve History in Thomasville - BNN Breaking - March 6th, 2024 [March 6th, 2024]
- Why cloud evolution needs a cohesive approach to succeed - CIO - March 6th, 2024 [March 6th, 2024]
- Gilead Sciences CEO on Company's Evolution and Commitment to the Bay Area - BioSpace - March 6th, 2024 [March 6th, 2024]
- Navigating the AI Quandary: Human Supremacy vs Machine Intelligence Evolution - BNN Breaking - March 6th, 2024 [March 6th, 2024]
- Denis Villeneuve breaks down the evolution of sandworms in 'Dune: Part Two' - Mashable - March 6th, 2024 [March 6th, 2024]
- Continued evolution of law improves governing capacity - Chinadaily.com.cn - China Daily - March 6th, 2024 [March 6th, 2024]
- The Evolution of the DEX Space with dYdX's CEO Antonio Juliano - Blockster - March 6th, 2024 [March 6th, 2024]
- Quick Commerce Evolution: 3PL Firms Aim for Same Day Delivery, Chasing Blinkit and Zepto's Lead - BNN Breaking - March 6th, 2024 [March 6th, 2024]
- What If...? Star Jeffrey Wright Addreses the Watcher's Evolution and 'Epic' Season 2 Finale - CBR - Comic Book Resources - December 31st, 2023 [December 31st, 2023]
- Evolution of the Connected Autonomous Vehicle - Ward's Auto - December 31st, 2023 [December 31st, 2023]
- A project to capture the evolution of human culture. - Psychology Today - December 31st, 2023 [December 31st, 2023]
- The Evolution of a Digital Soul. Beyond Code: A Journey of Heart and | by Mark Randall Havens | Dec, 2023 - Medium - December 31st, 2023 [December 31st, 2023]
- 4 Clues That Reid Is Finally Returning In Criminal Minds: Evolution Season 2 - Screen Rant - December 31st, 2023 [December 31st, 2023]
- Evolution of Samoyed and Kitten's Friendship Delights Internet: 'Wholesome' - Newsweek - December 31st, 2023 [December 31st, 2023]
- Crypto Evolution: Pullix (PLX) vs OKB (OKB) & KuCoin (KCS) - Crypto Reporter - December 31st, 2023 [December 31st, 2023]
- Alfa Romeos mediocre F1 season heralded its era of evolution: Prime Tire - The Athletic - December 31st, 2023 [December 31st, 2023]
- Beyond The Uniform: 10 Years of Evolution in SYNC Performance's Custom Program - SkiRacing.com - December 31st, 2023 [December 31st, 2023]
- Why SZA's evolution into a popstar has earned her recognition as artist of the year - Salon - December 31st, 2023 [December 31st, 2023]
- AI in 2023 Rises, Falls and Evolution - Finance Magnates - December 31st, 2023 [December 31st, 2023]
- Indonesia's Indosat pursues evolution from telecom to tech company - Nikkei Asia - December 31st, 2023 [December 31st, 2023]
- EdTech Evolution: 3 Stocks Educating the Next Generation - InvestorPlace - December 31st, 2023 [December 31st, 2023]
- Informa Tech Interview with Huawei about voice evolution and innovations at 5G Core Summit 2023 - Informa Tech ... - Light Reading - December 31st, 2023 [December 31st, 2023]
- Looking ahead: What will the DeFi evolution look like in 2024? - Ledger Insights - Ledger Insights - December 31st, 2023 [December 31st, 2023]
- Why Cat Bohannon wrote 'Eve, How the Female Body Drove 200 Million Years of Human Evolution' | India News ... - IndiaTimes - December 31st, 2023 [December 31st, 2023]
- The smart-design evolution of the laboratory space - pharmaphorum - December 31st, 2023 [December 31st, 2023]
- The WILD Evolution of Teenage Mutant Ninja Turtles TMNT (VIDEO) - FandomWire - December 31st, 2023 [December 31st, 2023]
- The supernatural invades American museums via indigenous artifacts - Why Evolution Is True - December 31st, 2023 [December 31st, 2023]
- Baleen Whales First Evolved Large Body Size in Cold Southern Waters, New Fossil Shows - Sci.News - December 31st, 2023 [December 31st, 2023]
- The Evolution of Identity in Taiwan The Diplomat - The Diplomat - December 31st, 2023 [December 31st, 2023]
- From the Archive: The Evolution Of Hockey Pools - The Hockey News - December 31st, 2023 [December 31st, 2023]
- 'X-Men: Evolution' Is Better Than 'X-Men: The Animated Series' - Collider - December 31st, 2023 [December 31st, 2023]
- Unveiling the Silver Screen: The Evolution of Celebrity Nudity in Cinema - The Hype Magazine - December 31st, 2023 [December 31st, 2023]
- Are Humans Still Evolving? 'Maybe More Rapidly Than Ever,' Says Scientist - Newsweek - December 31st, 2023 [December 31st, 2023]
- The Intersection of Real Estate and Fintech: Evolution, Impact of Policies, and Global Dynamics - CXOToday.com - December 31st, 2023 [December 31st, 2023]
- Kyle Richards' Style Evolution: Her Best Looks - Us Weekly - December 31st, 2023 [December 31st, 2023]
- Criminal Minds: Evolution Season 2's "Deeper Secrets" Teased By Aisha Tyler - Screen Rant - December 31st, 2023 [December 31st, 2023]
- Saturday: Hili dialogue Why Evolution Is True - Why Evolution Is True - December 31st, 2023 [December 31st, 2023]
- NBA 2K24 MyTEAM New Year Resolution Adds 14 Evolution Cards - ClutchPoints - December 31st, 2023 [December 31st, 2023]
- dive into the history of NASA's logo evolution from the space ... - Designboom - November 8th, 2023 [November 8th, 2023]
- Resolving the puzzle of same-sex sexual interactions - Nature.com - November 8th, 2023 [November 8th, 2023]
- The History and Evolution of Black Friday And How It Got Its Name - Yahoo Life - November 8th, 2023 [November 8th, 2023]
- Evolution of Terran R, with Tim Ellis (Relativity Space) - Payload - November 8th, 2023 [November 8th, 2023]
- Brownell Raves About Breakout Junior's Evolution - The Clemson Insider - November 8th, 2023 [November 8th, 2023]