Since Covid-19 took hold, much has been written about the merits of online mediation via videoconferencing (VC) facilities such as Zoom. Many mediators, including the author, have been trained to use Zoom so that the resolution of disputes does not have to wait until whenever life returns to ‘normal’ (whatever that may mean in the post-pandemic world).
The use of VC in the legal world is not new. As a solicitor in the early 1990s I arranged the first VC hearing in the English High Court when expert evidence was taken from two Californian lawyers on aspects of their community property law. The Access to Justice Act 1999 allows VC to be used for civil hearings, e.g. case management conferences, ancillary relief hearings, overseas or remote witnesses or in any civil cases in which the court directs the use of video and the parties involved consent to its use. Very recently complete trials have taken place in this way. Document signing software enables legally binding documents to be signed online.
In the criminal justice system for many years hearings, although no trials, have been conducted with defendants who are on remand in prison ‘attending’ by VC. This has not always received universal approval. Transform Justice’s report of 2017 asserted that ‘virtual technology inevitably degrades the quality of human interaction,’ and ‘nuances may be undetected, misunderstandings may go unnoticed more easily. Empathy may be lost’.
The expression online dispute resolution (ODR) first came to be used at the turn of the millennium in the context of early experiments of disputes being resolved by the use of algorithms with minimum human input. This expression has perhaps been hijacked by those who use VC for replicating face to face mediations.
The use of VC in mediation first appeared in the second decade of the 21st century although, until very recently, it has been slow to take off. This may be attributed in part to ignorance as to what the technology might achieve, in part that VC technology, which was initially used by large organisations for international meetings and presentations, was not really suitable for mediation; also perhaps to the feeling that mediating parties needed to be able to confront each other and ‘see the whites’ of their opponents’ eyes.
The recent restriction on personal meetings imposed throughout the world to restrain the spread of Covid-19 has forced a rapid re-think among the mediation community who have turned in increasing numbers for guidance to those who for many years have advocated the use of VC mediation.
VC suppliers have also adapted their technology so that it is now possible to recreate the facilities that are used in face to face mediations, such as the creation of ‘break-out’ rooms so that parties and their lawyers can have confidential discussions between themselves with or without the mediator, without being seen or overheard by anyone else.
So, what are the advantages of VC mediation?
Firstly, that a mediation can take place at all. The temptation to wait until social distancing is just a memory may be illusory as no one can foresee how long restrictions on movements and association will last, nor what relationship the parties will have by the time it is eventually over or whether any of them will remain in a sufficiently solvent state to make a financial settlement effective.
Secondly, there is a considerable time and cost saving, especially where the parties are in different jurisdictions, in avoiding the parties and their lawyers having to travel to a common location.
Thirdly, the parties themselves may feel more relaxed participating from their own homes or offices, in a more familiar environment and being able to take breaks more easily.
Fourthly, for those who cannot face the prospect of being in the same room as their opponent, or even having to come across them in the corridor of the mediation venue, the use of virtual meeting rooms can ensure that they do not have to see or hear each other. The mediator can disable any party’s video or audio connection so that it is still possible for a party to have their say and get things off their chest without having to see their opponent or risk interruption.
Fifth, if the mediation does not settle on the day, a second day, having given everyone a chance to reflect, can easily be arranged.
There are some disadvantages. Not everyone will be adept at mastering the technology, although it is increasingly user-friendly, and there is always the risk that someone’s broadband will choose the day of the mediation to run slow or there will be some other technical glitch. Although everyone can see everyone else’s face throughout, except where breakout rooms are used or the mediator disables a party’s access, there will inevitably be some loss of body language – the degradation of interaction to which, in the context of criminal procedure, the Transform Justice report refers. Security may be an issue, although suppliers have been tightening up on this aspect.
On the whole, however, the advantages of VC mediation would seem to outweigh the disadvantages, especially under the present circumstances. The anecdotal evidence of both mediators and parties is that, however sceptical they may have been at the outset, after experiencing VC mediation first-hand, they are converted to its use.