By: Rebecca Tinham
Prior to the pandemic, in the vast majority of cases, commercial mediation took place in person. Typically, for an ‘in-person’ mediation, parties will agree a suitable venue, or it may be a business suite in a hotel or one side’s solicitors’ offices. Remote mediations were routinely contemplated for international disputes, but unless geography dictated otherwise, the assumption was generally that the parties would convene somewhere with the requisite three suitable rooms to accommodate the expected plenary sessions and each party’s private discussions. Disputing parties were forewarned by their advisors that the physical presence of the ultimate decisionmaker was crucial, to expect a very long day of negotiations, and to consider practicalities, such as hotel bookings or the time of the last train home.
At the start of the pandemic, everything went online almost immediately. Mediators went on crash courses in Zoom or Microsoft Teams to facilitate their performance of the virtual gymnastics of bringing disputing parties and their teams together, putting each back in their own “private meeting room” and navigating his or her own movement between the virtual “rooms” without faux pas. The switch may not have been entirely seamless, but any early difficulties were quickly surmounted, leaving some of us questioning why we hadn’t routinely considered this an option before.
Now, post-pandemic, disputing parties have a choice. If they are going to mediate, do they do so “in-person” or remotely?
Which is better?
Clients will undoubtedly ask for their advisor’s opinion, and they will have their own preferences. Having experienced both, there are advantages and disadvantages to each, and the personalities involved and your client’s objectives need to be considered in order to make a sensible election.
Part of the reason a competently run mediation has such good prospects of bringing about a settlement of a dispute is the sense of occasion and the investment, emotional and monetary, involved. Typically, decision-makers and those close to the facts of the dispute, along with their advisors, come prepared to spend hours thrashing it out. It is entirely usual for parties to arrive at 8 am in the morning and not leave the venue until a deal is done late into the night.
The commitment of time, resource, and expense; the persuasiveness of a trained mediator; the opportunity to look your opponent in the eye and tell him or her what you really think of them “off the record”; the gradual diminution of resolve as the parties’ tire; these are all factors that contribute to the effectiveness of mediation as a means of resolving disputes. But are they all equally present at remote mediations?
A remote mediation does not conjure up quite the same sense of occasion and there may be a resulting diminution in the impetus to settle. It just doesn’t have the same ‘high stakes’ feel. That said, there are characteristics of remote mediation that might be seen as advantages and might make it the right choice for certain cases.
Do Remote Medications Save Time and Money?
Most obviously, remote mediation can be more convenient and cost-efficient. The parties do not need to cover the costs of a venue and there are no charges for solicitors’ traveling time. Perhaps less obvious is the fact that the facility to mediate remotely has introduced an agility that wasn’t there before.
Conventionally, involved parties had to surmount diary difficulties to settle on a day and then block out the whole working day (and beyond) in their diaries. Often, significant travel was required. Yet remote mediations leave all involved in situ. As a consequence, a remote mediation can be arranged and perhaps, more importantly, resumed, far more readily.
If a factor needs to be verified before the parties can move forward, parties are generally in their own office environments and able to go and ask that person on the shop floor who has the crucial knowhow required to determine whether a potential resolution proposal is a runner, or speak to whomsoever in accounts has the tiny but very important piece of data that no one has with them.
Often disputes are settled with a payment from A to B and require only a straightforward settlement agreement to formalize the settlement. Other agreed resolutions may require the parties to work together in the future and thus require a more detailed and thoughtful commercial agreement that will respond to the demands of ongoing service delivery. These more complicated settlements may benefit hugely from the agility that remote mediations offer. Rather than being faced with the undesirable situation of having to draft and agree to a complicated written agreement at 2 am in the morning when all involved are weary, remote mediation can accommodate a pause to work out the detail, and subsequent resumption of the mediation if necessary or desirable.
It shouldn’t be forgotten that many people simply prefer dealing with others face to face. Achieving settlement in a fractious commercial context requires excellent communication, the deployment of powers of persuasion, and highly astute people skills; demonstrating genuine empathy helps too. This isn’t as easy through a screen, from time to time being put on mute!
Parties on opposing sides of a dispute may well have differing views, so it’s perhaps best not to be too wedded to one or other of the mediation methods. Whether parties ultimately elect for ‘in person’ or remote mediation, either is likely to appear commercially desirable when compared to the prospect of litigation and all it entails. It is, however, wise to bear in mind how remote and in-person mediations differ and how those differences are likely to impact the dynamics of the dispute and the various personalities involved in its resolution.
