knowledge | 28 April 2020 |

COVID-19: Remote Mediation

With the outbreak of COVID-19, the operation of the courts has been significantly disrupted (see our recent briefing here). Against this backdrop, exploring the early settlement of disputes is likely to come into greater focus for many businesses. In this briefing, we consider the availability and benefits of remotely conducted mediation as a means of dispute resolution in the current climate.

Benefits of Remote Mediation

While mediation ordinarily offers numerous benefits to parties in terms of cost savings, confidentiality and the opportunity to reach flexible commercial solutions, the speed with which disputes can be resolved through mediation (rather than in litigation or arbitration) is of particular interest to many businesses during the COVID-19 crisis. Achieving a deal now, while the crisis is on-going, could be the difference between a business surviving rather than failing.  Reaching a settlement will often free up much needed financial and management resources, or help to salvage a key commercial relationship.

Remotely conducted mediations have two further significant benefits. First, the mediation can be arranged more quickly as people generally have good virtual availability, given the COVID-19 travel restrictions. Particularly where a mediation involves multiple parties, who may be travelling from different jurisdictions, arranging a date and location that is suitable for everyone can be a cause of delay and that is generally not an issue with virtual mediations.  Secondly, conducting the mediation remotely can lead to discussions progressing more quickly where parties may spend less time engaging in negotiating tactics or focusing on issues of lesser importance at the outset, and proceed more directly to substantive settlement negotiations.

Practical Considerations

While usually carried out in person, our recent experience has been that the traditional set-up of a mediation is relatively easily facilitated remotely using the technology and video conferencing tools which have now become the norm for many.

By allowing for multiple rooms, online platforms facilitate having a ‘virtual private room’ for each of the parties and a ‘virtual joint room’ where meetings with representatives of both sides can take place. This allows parties to speak privately with their advisors (in the same way as they would at a mediation conducted face to face) and allows the mediator, who has control over who can enter each room, to run both joint sessions and private meetings with each party.

Indeed, a number of elements of a traditional mediation (for example, the conclusion of the mediation agreement and exchange of position papers) are already completed remotely, so these elements can proceed unaffected. Executing a settlement agreement can also be facilitated remotely if necessary (see our recent briefing on signing documents from home here), meaning that a case can be fully settled on the day. Further, online screen sharing allows parties to review and contribute to core mediation documents such as a draft settlement agreement, although parties may still prefer to do this by email to ensure any changes to the agreement can be fully tracked.

We would recommend having some form of dry run before the day of the mediation to ensure that everyone is familiar with the technology being used. In that regard, we would also suggest keeping the number of participants as low as possible, as that not only reduces the pressure on the technology used but can also facilitate more efficient and effective communication.

Finally, maintaining confidentiality is of course critical in any mediation, so it is also important to ensure that any platform proposed to be used has adequate security protections in place.

How can we help?

The outbreak of COVID-19 has resulted in unprecedented challenges for businesses, some of which will potentially trigger litigation. The availability of remote mediation as a means of dispute resolution, particularly when court restrictions are in place, is a key resource in seeking to resolve not only existing disputes, but also those emerging during this crisis.

The Disputes Group at McCann FitzGerald is ready and willing to assist clients in addressing all of their concerns at this difficult time, whether that arises in respect of regulatory and/or litigation issues business may face in responding to COVID-19. Alternatively, your usual contact in McCann FitzGerald will be pleased to provide further information.

Also contributed by Patrick Longworth.

This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.

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