With the pandemic crisis showing little sign of abating and HM Government’s lockdown measures taking effect, the traditional system of Civil and Family Justice in England and Wales, by means of Court or Tribunal based litigation, has significantly slowed. In their most recent ‘Message to Circuit and District Judges in Civil and Family’, dated 9th April 2020, the Lord Chief Justice, Master of the Rolls and the President of the Family Division, acknowledged that only around 40% of hearings were effective. A significant proportion of such hearings were to deal with purely case management issues, including the adjournment of many trials.
On 19th March 2020, the Lord Chief Justice, Lord Burnett, encouraged parties to litigation to “explore…the possibility of compromise” thus the Covid-19 lockdown means that the benefits of resolving litigation or disputes have never been greater!
In these circumstances, three important questions arise: Where does this leave clients with existing disputes? Where does this leave clients who need a swift resolution to a dispute that has arisen as a direct or indirect result of the Covid-19 pandemic? How can we as lawyers continue to work with and for our clients?
Mediation as a process:
Many commercial and private client disputes are resolved by mediation. This process involves the instruction of an independent mediator who assists the parties to negotiate a settlement to their dispute. Mediation has proven popular with clients as it often results in a settlement which thus saves then from further costs, time and the disruption that continuing with litigation would bring. Nevertheless, how can you mediate if you are unable to meet with your client, opponent and above all the mediator in person? The answer lies in the use of Remote mediation.
What is Remote Mediation?
Remote Mediation is where the mediation day itself, the inter parties negotiation guided and assisted by the independent Mediator, is conducted remotely instead of in person. In addition, the other common aspects of the mediation process eg. agreement the mediation agreement, preparing and distributing the mediation bundle and exchanging Case Summaries are all carried out remotely using technology such that they are unaffected by the pandemic and the Government’s lock down measures.
How is Remote Mediation conducted?
Remote Mediation can be conducted using a variety of online platforms, either individually or in combination with each other, these include Lifesize (incorporating Skype for Business), Zoom, Facetime, GoToMeeting, POWOW, telephone and/or email. The process(es) agreed will depend upon the availability of appropriate facilities to parties and their level of familiarity in operating them.
Within Pump Court Chambers we are able to offer a number of online platforms including ‘Lifesize (incorporating Skype for Business)’ that can be tailor made to conduct mediations by providing a joint meeting room along with multiple ‘Private meeting rooms’ within the platform allowing the mediator to switch easily from one meeting to room to another whilst maintaining confidentiality as between parties. Further, this platform allows for parties to be able to communicate privately with their lawyers.
As part of the mediation preparation process, a demonstration of the system(s) can be arranged in advance of the mediation day to ensure that all parties are familiar with and know how to use the platform.
What are the benefits of Remote Mediation?
One of the main benefits of mediation is that as a process it is not subject to the procedural rules or requirements of the traditional court based litigation process but is driven by the parties involved in the dispute. Remote Mediation provides a flexible, cost effective and efficient way by which parties can regain control of their dispute and the process.
Remote Mediation sessions can be arranged swiftly and are accessible to all to attend, no matter where they might be geographically located. Further, the costs and time taken travelling to and from the mediation are removed. Parties not being physically present at the mediation can reduce tension, coupled with the ability for parties to remain in a familiar environment eg. home/office this can further reduce stress and assist in parties reaching a compromise. Sometimes, the fact that a mediation is conducted online, results in parties getting straight to the point with a ‘cards on the table approach’ and reaching a settlement more quickly thus avoiding the negotiating tactics that can lead to long mediation days where parties attend in person.
Further, all of this can be achieved in reasonable timeframes. This is particularly important in the current climate where the impact of Covid-19 on commercial contracts eg. disruption to supply chains, staff absence through self-isolation, force majeure clauses, cashflow – will have huge impacts for clients and the speedy resolution to a dispute can be critical, not only for an ongoing business relationship but for the viability of a business itself! With court’s being unlikely to assist, it falls to mediation to provide clients with a process for pursuing and settling their dispute in a way which is both time and cost effective.
Remote Mediation using technology specifically tailored to the requirements of parties, allows legal practitioners to continue to work on a client’s dispute, albeit in a different way to the requirements of formal court proceedings thus retaining the constructive generation of fees. As with any dispute, mediation will require preparation and work on a legal dispute with both your client and the other side. However, the mediation process should involve a settlement basis approach to the dispute that is designed to be less adversarial than court based litigation.
As with any mediation, Remote Mediation involves the independent mediator acting as an intermediary between the parties throughout the process, adopting the flexibility of a combination of joint and/or private sessions with the parties, experts and their advisors as necessary. The process allows parties to take breaks as and when required but always ensuring that they remain close to their computer, tablet, phone or other device for the process to continue.
At what stage should Remote Mediation be considered?
Early Stage Mediation is an ideal process to engage parties in a dispute sooner rather than later. A successful mediation does not have to await a case management process of full disclosure, obtaining expert reports or the preparation of detailed witness statements. Some of the most successful mediations are those that are held before legal proceedings have even been issued.
Whilst there are some disputes for which Early Stage Mediation may be too early to achieve a settlement, I am a great believer that it is never too early for parties to a dispute to start talking about their dispute, the reasons for it and possible options for a resolution to their dispute. In my experience, even if the entire dispute is not resolved as part of Early Stage Mediation, often key issues can be identified and narrowed/partially resolved and/or interim arrangements can be agreed. The latter can be of vital importance with the effects of the Covid-19 pandemic and government lockdown restrictions on commercial contracts and relationships.
In any mediation, settlement remains firmly in the hands of the parties. Having conducted and taken part in many mediations, both in person and remotely, it is clear that in instructing a skilled mediator with excellent communication skills to conduct a Remote Mediation, a resolution can be found to most disputes. Whilst any compromise is likely to involve movement from all parties, the certainty of an early and cost effective resolution to a dispute, in what are very uncertain times, can only be positive.
Barrister & Mediator
If you would like to discuss how Andrew Grime or any member of the Pump Court Chambers ADR team can assist, please contact either Jonathan Cue (Senior Civil Clerk) whose contact details are 07515 334470 or firstname.lastname@example.org or Sean Gentleman (Senior Family Clerk) whose contact details are 07411 970188 or email@example.com