By early March 2020, it was clear that Covid-19 was going to affect mediation and all other business meetings. I completed face-to-face mediations at offices where precautionary measures were already in place – then came lockdown. Like other mediators, I grappled with video platforms and then embarked on mediation by online meetings.
Building a bridge is the essence of a deal, particularly in settling disputes. A key challenge in deal-making is effective communication. Not only active listening but also persuasion – and understanding the other side’s commercial needs – and not forgetting the human perspectives of counterparts. A negotiation does not get very far if each side berates the other.
A friend in the oil business told me last year that deal-making was just not the same during Covid. The chance to connect with counterparts on a human level had gone, e.g. the chat by the coffee machine, the opportunity for engaging away from the meeting room. Some mediators took the opposite line – they said how marvellous online mediations were. Possibly even better than face-to-face work.
My mediation workload has been hugely varied during Covid. Disputes over data supply, arguments over the performance of sales apps, trademark licences, distribution deals, partnership disputes in the pensions field, disclosure of personal information in the employment arena – to name just some of the issues I have mediated.
One particular challenge for a mediator during Covid has been to create a relationship with the parties online – from a standing start. Quite unlike say a board meeting where attendees know each other. There have been challenges too, where party representatives may (or may not) know each other but are in dispute and are all at the same video meeting. Effective communication in that context has often meant reducing the number of participants to generate a focused discussion in a small (virtual) room.
Pre-Covid, in-person meetings before the mediation day between a mediator and the parties were the exception, because of the extra time, inconvenience, and added cost. But Covid allowed video calls to take place before the mediation day. Mediators could start to get to know party representatives – and discuss the issues – and hit the ground running on the main mediation day. Party representatives after video mediations have also fed back that being at home helped them approach a discussion with greater ease.
Communication by video has also had its technical and practical challenges. Poor connections, people socially distancing in the same room wearing face masks, using different PCs in the same room with feedback, etc. The difficulties of keeping participants engaged, the challenge of engaging with people seeing their shoulders and head only – framed in a screen and side-by-side on the video platform. Mediation during this past year has also required participants to adapt. Hybrid in-person / video mediations, one party meeting by video, the other taking part by phone, etc.
But for all those difficulties, I have found effective communication to be possible in video mediations of business disputes. Litigants have so often proved themselves up to the challenge of seeing the other’s point of view. Other litigants have even been persuaded to re-evaluate their commercial positions. And among all this has been a need in many cases to get a dispute out of the way – to let the business focus on the severe challenges presented by the current climate.
For a mediator, to be able to break through the video screen as it were and secure a key understanding – that has been professionally rewarding and sometimes unexpected.
As we now move back to face-to-face mediation, some of the developments during Covid are, I think, here to stay. The greater use of video technology for early mediator/party meetings, and a readiness to use video technology in some cases, particularly where parties are a considerable physical distance apart. And overall a greater sense that the mediation process can and should start much earlier, once the mediation agreement has been signed. There is likely to be greater flexibility around the ‘one-day’ model, with shorter meetings used to build consensus.
But I suspect that my friend in the oil business is correct. There is nothing like physical proximity for commercial deal-making, particularly to get the more difficult disputes settled. We know that video mediation works and works well. I am looking forward to working with parties in physical proximity again while acknowledging the benefits and opportunities that video mediation has created.
Stephen Bate, LCAM Mediator