More than half my mediations as mediator in the last two years have been on Zoom, Teams or other remote software due to Covid restrictions.  Will we return to face-to-face mediation when the pandemic eases?

It is worth evaluating online mediation on its own merits, as an alternative or supplement to face-to-face mediation in the post pandemic world.

In my view Zoom mediation is an effective alternative, and in some respects is much better.   Consider these points.

1. A lack of physical venue can encourage mediation

• Since there is no physical venue, there is no hiring cost and no need to agree on a location.
• Since there is no need to physically attend, attendance can be much easier and cheaper for all parties.

2. Beware the informality of Zoom  

• The relative informality of Zoom can leave clients less prepared to negotiate, especially if they are attending from home.
• Before the mediation begins, you can get your clients in a “deal making head space” where they are ready to negotiate. 
• Go over the basics such as costs of going to trial, cost exposures if lose, merits – Risks of winning v losing, the narrow limits of the of a victory in Court to the issues in the case v unbounded possibilities of a negotiated settlement
• Work on this before the mediation.

3. Practice with the software before the day

• To test out the Zoom links, the mediator can host a pre-mediation session via Zoom as well.
• Encourage clients to have their Zoom software in place and tested before the day.
• Have side methods of communication set up for private secure chats with clients.  SMS/email/Whatsapp etc.

4. The software has many convenient organisational features

• It is easy to schedule meetings, send appointments, organise links, and use one click joining
• Zoom can very effectively host larger numbers:  more so than physical venues
• Anyone can attend at push of a button – it’s a lower cost to clients to attend and they can benefit – eg more well informed attendees to assist deal making

5. A low-cost bridge across time zones and space

• Cross geographic distances and time zones easily (esp international/interstate)
• It allows parties to work in the background more effectively on other matters:  which means mediation is not as costly to attendees in lost time.
• Remote attendance can make it easier to get instructions.

6. Zoom/Teams are well adapted to mediation

• The software can easily establish multiple rooms for the parties and joint sessions, in imitation of in person mediation
• It’s also easy to move small groups into rooms for discussion – eg client only, lawyer only, subset of parties.
• If needed (although I don’t encourage it) it is logistically easy to reconvene on a later date if a break is required with no resolution.

7. Presentation possibilities are enhanced

• Onscreen sharing of documents is easy
• There is an ability to use documents in open session eg power point summaries
• There is an ability to view key documents produced in the negotiations
• Onscreen sharing of draft terms is useful to save time
  

8.  Limitations

• Not being in the room physically releases pressure on the attendees:  that be a disadvantage since  the grind of being in the room at an all-day mediation is often a key to getting a deal done.
• The mediator and solicitors need to keep parties engaged and in attendance, even if doing other things.  Don’t let people leave the “Room” in the Zoom.
• Zoom can be too casual:
• Dress appropriately for a business meeting
• Use business virtual background, keep the mood professional.

9. Technical Traps

• Don’t record the mediation:  it undermines the confidential and without prejudice nature of the day.
• Be ready for internet or other Tech failures: have everyone’s details to easily re-establish contact.

10. Terms of settlement

• Drafting terms always takes time, sometimes too much time because of lack of preparation
• Encourage the parties to prepare drafts in advance of the day
• Use Zoom to work on collaboratively on draft documents where feasible.
• If the terms aren’t signed, there is no deal:  discourage parties who want to leave the documentation to another day.
• Use electronic signing – exchange counterparts or use apps such as DocuSign in a single copy.