Mediation for the Future

Until a few weeks ago anything less than a conventional day long mediation meeting with all the key actors present would have been considered completely unsatisfactory and impractical. Now the leading mediation providers in the UK and the USA are fully launched into the new era of mediating by video link. This is unlikely to be a passing phase in the evolution of mediation.

Necessity in the time of corona virus has been the mother of this development. Just as the courts have discovered that the only alternative to using video conferencing is more delay, with all the adverse consequences for costs and the stress of continuing time-consuming litigation. The advantages of enthusiastically adopting the new technology for mediation lie in the ease of use, the avoidance of travel costs, particularly in international cases, and the greater flexibility that working remotely allows. The prospect of taking complex mediations in different stages, with meetings of lawyers followed by a plenary session, followed by expert meetings, no longer seems so troublesome.

There are concerns about the use of the new technology but they largely arise from unfamiliarity with the process. The main factor is the need for the protection of confidentiality, both from external interests and between the opposing parties. The video conferencing facility most used by mediators is Zoom, which provides breakout rooms for each party, but has attracted some technical criticism in the press. For the mediation community the requirement of a password to join the mediation, control by the mediator of entry into the virtual mediation rooms and the prevention of any recording of the process, should satisfy most parties.  At this stage of its development the process requires a short rehearsal with the lawyers on each side, in order to explain the safeguards and build confidence in the new medium. As the process is online it does raise some cyber risks but in essence the integrity and confidentiality of the mediation critically depends, as ever, on the mediator.

There have already been a substantial number of successful video conferencing mediations in the UK. For first time clients the process has been a welcome revelation as to how mediation can become easier to arrange and as effective as a meeting in person.  For the legal profession it might do well to recall the words of the philosopher Eric Hoffer:

“In times of change it is the learners who inherit the future; while the learned find themselves beautifully equipped to deal with a world that no longer exists.”

This article was written by Charles Flint QC.