2020 has certainly been quite a year so far! The litigation landscape has changed, suddenly and dramatically. As lawyers we’re not renowned for being at the forefront of technological change, but we were abruptly thrown in at the deep end and managed to swim; surprisingly well.
In the early days of lockdown litigators faced a real challenge in working out how best to adjust their practices so they could continue to service their clients’ needs, meet their billing targets, juggle their management responsibilities etc. whilst at the same time coping with the demands of the whole family being stuck indoors at once without access to childcare, dog sitting or even a supermarket delivery slot. Information and guidance was changing rapidly and some of it was unhelpful and even contradictory.
Against this adversity some great opportunities emerged, one of which has been the rapid development of online mediations. Initially, many litigators were reluctant to embrace the technology:
- “I’m hoping this will be over in a few months so I’d rather just postpone the mediation”
- “How do I know that the online platform is secure/GDPR compliant?”
- “It’s just too much of a logistical challenge”
- “I’m not sure my client has the IT skills” [although I suspect they probably meant themselves!]
- “Surely it won’t work unless we can see each other in person; it just won’t be the same”
- “I just don’t have the time to work out how to put together a PDF bundle”
- “I don’t have the technology”
As time went on we all became more and more familiar with the ‘remote working’ technology that was available to us, and had been for many years. Our local pub quiz went virtual. We got drunk with friends via webcam. Grandma even bought a tablet to chat with the grandchildren from the safety of her lounge. IT staff worked wonders behind the scenes adjusting networks and producing fact-sheets to facilitate remote working for even the least tech savvy litigators.
Litigators started to hear positive feedback from pioneering colleagues who had undertaken online mediations, with varying success. Not every online mediation went smoothly in the early days: I vividly recall one mediation where I appeared as counsel where the mediator hadn’t even realised that they had to pay for a licence to host a meeting for longer than the 40 minute free period provided by Zoom, less still did he realise what a breakout room was or how to use the function! Lessons were learned from early teething problems. Different platforms were trialled. Breakout rooms were embraced. Working in a shirt and tie whilst wearing gym shorts ‘newsreader style’ suddenly became normal; and surprisingly liberating.
Most significantly, big money cases started to settle successfully at mediation without a single person leaving the comfort of their own home.
Now, some 5 months on, we have settled into the current ‘new normal’: a hybrid mix of remote and office-based work. Few people even blink an eye when platforms such as Zoom, MS Teams, Skype etc. are mentioned.
Using a one of the popular platforms it is possible to replicate and, in some ways, even enhance the mediation process. With very little effort each individual can be automatically assigned to their side’s secure ‘breakout’ room, with separate rooms for the other parties, the open sessions, and for one-on-ones with the mediator or other miscellaneous discussions. All of these rooms run in parallel and can be set up in advance to enable the parties to arrive early should they desire. The ‘virtual’ process is just like in the pre-CV19 days, arriving at the reception desk in person and being shown into a physical room, except it happens with a couple of clicks. As host the mediator can pop in and out of rooms, using messaging software in advance so they don’t wander in unannounced. The mediator can then move attendees in and out of the various rooms as required. Unlike in-person mediations, attendees aren’t stuck in unfamiliar surroundings or having to share corporate catering and are free to take breaks as/when required. It is my practice to hold a quick demonstration / dry-run a few days in advance should anyone be unfamiliar with the technology.
Doubtless the current ‘new normal’ will change in the months ahead, but with talk of a potential ‘second wave’ it is uncertain quite what that landscape will be. What is certain is that, regardless of whether restrictions are further relaxed or start to be tightened again, online mediations will remain a tool which now has a successful track record.
As a mediator I found that online mediations provided some fantastic opportunities. Not only did they allow me to continue working during the darker days of lockdown (I must confess I sometimes did so wearing shorts to no-ones knowledge!), but they also presented me with the opportunity to reap the benefits of working remotely. I was able to avoid the 5am starts to get to a far flung office building, or the overnight stay in a bland corporate hotel. I wasn’t the only one. Litigators and their clients were also able to benefit. Most importantly, the initial concerns about participating in an online mediation didn’t materialise or were overcome far more easily than had been feared.
I embraced the technology. I invested in an HD webcam, decent speakers and a 3 screen set up which enables me to have multiple windows open at once, increased my bandwidth, and worked out how to use the conference call facility on my deskphone as a fallback if all else fails. I also took the time to learn how to use the ‘paper-lite’ programmes that I had left unopened on my Chambers IT network since the day they were installed (much to the consternation of our IT manager!) and discovered, after a relatively modest time investment, just how useful they really were.
As time went on litigators became more familiar with the use of PDF editing software meaning that instead of being sent 50+ separate PDF files in a flurry of emails, consolidated e-Bundles started to be provided. Issues with email/file size were overcome through the use of cloud based file sharing platforms.
The providers of online video conferencing platforms upped their game. Security/GDPR issues were addressed. Platform stability improved. New features were added.
Features, such as screen-sharing, really began to prove their worth. Documents were being displayed with a few clicks of a mouse as opposed to the usual delay whilst everyone tried to find their copy in the files. Lawyers could collaborate on the drafting of the settlement agreement without having to lean over each other’s shoulders awkwardly.
Most importantly, the inter-personal nature of mediation discussions is not lost. Some of the psychology of mediation changed, but much less than expected. It is fair to say that there are occasions where I have missed having the opportunity to have an in-person ‘face-to-face’ chat with a particular participant, but these are remarkably few and far between. I suspect that the familiarity people developed over time with video conferencing platforms has really helped overcome the initial barriers to building an online rapport with participants.
Whilst not every case will necessarily be suitable for an online mediation, my own anecdotal experience suggests that the vast majority are. A good mediator will be flexible and will adapt to meet the particular needs of a case or of the parties. A quick email or phone call at booking stage can make all the difference. For those unfamiliar with the technology I am more than happy to arrange a demonstration. As has always been my practice, I am happy to chat through any reservations or concerns a prospective party may have about whether their particular case is suitable for mediation and if so whether an online mediation is worth trying. As a mediator my focus is to help parties achieve a settlement and will always be open if I have any reason to think an online mediation might not be suitable; ultimately there is nothing more demoralising for a mediator who has put significant time and energy into helping the parties with their negotiations than a failed mediation so I will always be realistic.
If it wasn’t obvious, my short but resounding answer to the question ‘Do online mediations really work?’, is yes they really do.
Stuart Wright is a Barrister of 20 years call and Head of the Civil Team at 1 Crown Office Row (Brighton). He qualified as a Civil and Commercial Mediator in 2014 and has conducted a wide range of mediations over the years in his practice areas.