Although more evident in these times, online or remote mediation is not a new concept to dispute resolution. It has been used effectively in some form or other, be it by telephone, teleconferencing, etc. as part of the mediation and the broader dispute resolution process for many years.
In 1998, a pilot project was conducted for an online based site to see whether disputes between buyers and sellers could be mediated online. More than 150 disputes handled in a 2week period and ODR then became an established feature. By 2010, over sixty million ODR disputes were being handled each year.
We have naturally had to become even more dependent on our smart phones, tablets, laptops, and computers with our adaption and response to COVID‑19. We have had to learn new ways and attitudes to working whilst staying safe, connected, entertained, but distanced.
My own COVID-19 Mediation Policy can be found here.
Due to our current situation with COVID-19 and the increased use of online video conferencing applications such as Zoom, Teams, Skype, etc. mediation by video conference has become a successful alternative to face to face mediations and resolving disputes.
Not without its challenges in other areas, online mediations are reported to be having success rates equal to mediations conducted in person.
I use online conferencing every day of the week and, have very successfully used online applications and access in Dispute Resolution, Expert Determination cases and as an Expert Witness on many occasions.
Additionally, the exchange of case documents, case statements, mediation agreements, etc. have been uploaded or downloaded electronically by e-mail, WeTransfer, Drobox, or other online file transfer systems.
A simplified illustration of the online mediation process can be found here – (Link to circles illustration)
Although the practicalities differ, the basic elements of mediating a dispute online are similar to mediating a dispute in person, but there needs to be a slightly different approach with a different set of tools in the mediator’s toolbox.
My online mediations are carried out in line with the International Online Dispute Resolution Council’s Guidelines.
Their tenets for online / video conferencing mediators and mediations are:
Although there are many video conferencing applications, Zoom Pro now appears to be the recommended application for mediations and is the mediator’s video conferencing application of choice.
It can be downloaded here if you want it, however, there is no need to do a download as the parties can follow the secure link that I send out.
There are training portals and user guides – Zoom https://support.zoom.us/hc/en-us/articles/204772869-ZoomRooms-User-Guide). where video tutorials available.
Online Mediation Basics
There are many aspects and considerations which should be taken into account when holding a mediation online. The basics are listed below.
Using the right equipment and platform is an essential component of a successful online mediation.
Today’s technology means you could use a decent smartphone as a participant, but using a laptop or tablet which has a good camera and microphone offers a better user experience and is less likely to cause an interruption if the participant receives a phone call, text message or email whilst online and actively involved in the mediation.
For online mediation, as well as the quality of your broadband connection, an established and secure internet connection is essential. You can test your broadband speed and capacity here – (www.broadbankspeedchecker.co.uk) and if using Zoom, your connection can be tested here – (Zoom connection test)
Depending on the online platforms agreed, in general, they offer a Waiting Room facility where the participants will gather and collectively. No-one will be able to speak to anyone else, you will all be waiting here until the session is opened.
They also offer a Breakout Room facility where group participants are broken into their respective groups/parties by the administrator where they can hold confidential discussions amongst themselves and/or with the mediator, but not with the other parties.
Once all participants are online, the session is locked, that way it will be fully secured, no-one else can then join or participate in the session.
There is normally an around the room introduction of all the individual participants, their role and whom they represent in the mediation session.
Only the Administrator has the control and ability to bring one of the other participating parties into a separate joint online session.
You should use in a tidy, well-lit room with a neutral background, warm-toned colours are preferable. Do not sit with a window or a bright light behind you as your face will appear dark and no-one will be able to see you. Use the blur option in the video conferencing software if it has one. Avoid using the installed backgrounds if they are installed, they are designed to be used without a green screen.
As pets and children have the potential to be distracting and interruption to you and everyone in the session. They should be kept quiet and totally away from the room or office you are using. Choose somewhere that is not a thoroughfare to another part of the house or office.
It takes a bit of practice to master it, but when you are speaking and looking at the laptop or tablet, sit up straight and remember to look at its camera, not your small picture in the corner of the screen.
During the initial video setup, there is a facility to see yourself and gauge your distance from the camera. You should pose yourself with your face and upper body in the camera frame on the screen.
Challenges and Rules
There are some specific challenges and ground rules to holding an online mediation which needs to be considered and agreed to.
I will supply my own recommended guidelines to the parties prior to the mediation.
For the purposes of brevity, these include:
All discussions, jointly or separately, throughout the mediation, are completely confidential. I will not break any confidence, what we discuss in your breakout room will remain between us. Nothing will be conveyed to the other party unless you have asked me to relay it or have given me your express permission to do so.
The Mediation Agreement will have a Privacy Clause where, you the parties, have agreed that it is only parties who are listed on the Participant Form that may attend or, be present, in the rooms where each party member is joining from.
A secure videoconferencing platform with end-to-end encryption will be used.
Apps or software that require location information to be shared shall have that function turned off.
Electronic Signatures. (more info link)
The legal status on the use of electronic signatures has been raised, especially if it is simply a cut and paste of a ‘dry’ scan of a party’s signature.
Given the value of the sums involved, the nature of some disputes and the potential to the risk of a challenge of the authenticity of an electronic signature, the use of a verified and/or auditable signature trail should, if their use is acceptable to the parties, be agreed and will be written into both the Mediation Agreement and Mediation Settlement Agreement.
The online mediation agreement has a recording clause where, you the parties, have agreed that recording is not permitted. Steps to prevent recording through the video conferencing software will be taken.
Planned or Possible Interruptions
If a party needs to leave the mediation for a planned event, it is important that they have informed me before the mediation has begun.
As detailed in Privacy, it is only the parties listed on mediation agreement that should be present during the mediation. If there is an interruption by a family member or other person during the mediation, the mediation will be suspended until the interruption has been addressed and all parties are happy to continue.
To avoid distraction, feedback, or an echo from multiple speakers, during the mediation phases, the default setting for all party’s microphones will be mute unless that party is speaking.
Use of Phones/Checking Emails
Where possible, all participants should have email and messenger functions off during the mediation.
Regular screen breaks will be encouraged to get away from sitting at a computer. The parties are asked to inform me if they are needing a comfort or refreshment break, not to just disappear.
Technical Issues / Plan B
If one party disconnects, the session will be suspended until they can re-join.
If a party’s audio cuts out or becomes distorted, once their audio resumes and asked to repeat what was said during the outage. A back-up