Seismic shift is probably the best way to describe how the practice of mediation changed in 2020.
Before Covid, Mediation was fundamentally seen as a face-to-face activity. Like many mediators, I could point to a few cases where some participants had joined by video call (exclusively where there were international parties who could not travel for the mediation for one reason or another), but largely speaking, my mediation practice involved face to face meetings.
Then the pandemic changed all of that. Possibly I was fortunate that in the last few weeks before the first lockdown, I was mediating a case where one participant from one party was shielding and so it was switched from a face-to-face to a hybrid mediation with one party attending in person and one on Zoom. That gave me a gentle introduction to having an entire party attending remotely (as opposed to the one participant attending remotely that I had experienced in the past) and was valuable learning for months ahead as we went into total lockdown and mediation moved online.
Another case that was due to take place the week we went into lockdown saw one party point blank refuse to use zoom and insist I mediated by telephone. I am pleased to report it settled notwithstanding the obstacles that caused!
Since then, of course, it has become totally normal for people to conduct their professional affairs on zoom or teams, and I am sure that although as the world opens up again, face to face mediation will revert to being the norm, a significant amount of mediation work will remain on-line: In particular where participants are not all based in the same jurisdiction.
Looking at the type of cases that crossed my desk in 2020, I saw a healthy mix of commercial, banking related and real estate-related cases for a variety of domestic and international parties. There didn’t seem to be anyone sector that was less inclined to mediate under the 2020 “new normal”. As for settlement rates, 81% of cases I mediated in 2019 settled compared to 79% in 2020. I don’t think therefore that it would be fair to suggest online mediation compromises settlement rates to any significant degree.
Of course, the preparation for mediation is different for online mediation. Issues that wouldn’t arise if everyone was in a face-to-face mediation can arise. For example, ensuring that any signatories (and possibly witnesses) likely to be needed for a settlement agreement are going to be available and have access to printing and scanning facilities, even if a settlement is concluded after hours. Also ensuring that all participants have access to reliable Wi-Fi (and that there is a communication backup plan in case it is needed).
There are many aspects of mediation that did not change in 2020. It is still a flexible and creative way of exploring how parties with diametrically opposed world views can find a solution to their differences: Preferably a win-win solution. It is still a much cheaper alternative to the Court process and allows solutions that a Court could not order because they go beyond the pleaded case.
In summary, mediation in lockdown worked, although it will be a joy to be able to meet people face to face as we emerge from the pandemic.
Beverley Vara, LCAM Mediator