Most cases suitable for mediation can be mediated remotely. Below are some tips to help you and your clients to get the most from remote mediation:
- If not already familiar with the wider benefits of mediation, consider devoting some Continuing Professional Development (CPD) hours to improving your understanding of how mediation works and its benefits. Think about doing some specific mediation advocacy training.
- Assess every case for suitability for mediation/remote mediation (or even a hybrid).
- When choosing a mediator for a remote mediation, ask about the mediator’s familiarity with and experience of remote mediation.
- Familiarise yourself with the various platforms available for remote mediation. Be aware of the various privacy policies associated with specific platforms and your duties regarding data protection and privacy.
- Invest in good quality tech: a reliable internet connection, a webcam with a good resolution and frame rate (1080p and 30fps is a good guide) and a good quality microphone – ask people what the quality is like in your calls. Many people find that combined headphones and microphone work well, but you may not find it a good look!
- Check that your team has adequate tech too.
- It is often very helpful to use separate devices for accessing the mediation and for making notes or viewing documents.
- Pre-mediation meetings are easier to arrange remotely than in-person meetings. Encourage your whole team to participate, especially if they are not familiar with mediation or remote video conferencing. Use those meetings to find out how the mediator likes to work and what they will expect from the participants.
- Consider where your team is going to be located for the mediation. If people are going to be in separate locations, plan carefully how the mediation will work and how you will communicate privately with each other during the mediation. Private virtual breakout rooms may be available but breaking to go in and out of a breakout room may disrupt the flow of the mediation, and you may not want it to be obvious that you are discussing a matter. A parallel channel of communication, such as a WhatsApp group, will allow private communication during the mediation. Most video-conferencing platforms have a ‘chat’ facility. Some also allow for private messages between participants. However, bear in mind the risk of accidentally messaging everyone, including the mediator and the team on the other side.
- Parallel communication channels with the mediator and the other side may be helpful, especially for times when you are in different virtual breakout rooms.
- Have a test run with your team using the chosen platform so everyone understands how it works.
- Ensure everyone understands the need for confidentiality and to mute their microphone when not speaking. Also, switching off your camera may mean you cannot be seen, but you can still be heard.
- Some remote platforms allow the session to be recorded. It is also easy for people to record what is said on other devices. There should be clear agreement from everyone not to do so.
- Participants may need reassurance that virtual breakout rooms are safe spaces where private and confidential discussions can take place. However, they should also be made aware that the mediator could appear in a virtual breakout room without warning. If you are having a particularly sensitive discussion, consider asking the mediator to send a WhatsApp message before entering.
- At an ‘in-person’ mediation it is generally known who is physically present on each side. In remote mediation, this may be less obvious. The mediator may request an assurance from each party that only those who have been identified in advance are present.
- Plan the logistics of finalising any agreement reached and the mechanics for participants to be involved in drafting and sharing drafts. It is useful to have an outline template with boilerplate clauses before the mediation begins.
- It is possible that someone may lose connection and drop out of the meeting unexpectedly. If the meeting has been ‘locked’ by the mediator, you may need to request that the meeting be unlocked to allow the person to return. Similarly, if someone needs to leave the meeting temporarily or join later, arrangements may need to be made to notify when they are ready to enter the meeting.
- There are also some quirks of remote mediation that need to be considered. You might want to agree a process for entering/leaving joint meetings so that clients are not left in a potentially awkward situation of being alone in a breakout room with the other side.
Antony Sendall, Littleton Chambers
Jonathan Lux, Lux Mediation