On-line Mediations – Should you get used to them?

With the COVID–19 coronavirus continuing to circulate in Australia and around the world, parties in a variety of disputes over the last 18 months have had to adjust the way they conduct their mediations.

Mediators have also had to adjust to the environment, and there has been a significant increase in the use of online mediations.

The Resolution Institute of Australia and New Zealand recently released their White Paper[1] on current trends and attitudes towards online mediation, which makes for interesting reading both for mediators, as well as those lawyers and parties engaged in these mediations.

What is an online mediation?

According to the Resolution Institute Mediation Rules, ‘mediation’ is a process in which parties to a dispute, with the assistance of a neutral third party (the mediator), identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement.  Anyone who has been involved in a mediation in the last few decades (or more!) would be familiar with the face-to-face nature of the mediation, whether that be in a “joint session” with all the parties, their advisers and the mediator, or in a private session between the mediator and some of the participants.

However, the severity and persistence of the COVID-19 coronavirus meant that mediations, and just about every other form of dispute resolution, was forced on to an online platform in 2020. You may be therefore left wondering how one can engage in a successful mediation entirely over a computer screen.  It seems counter-intuitive.

It should be noted that the White Paper is only based on a survey response from 137 respondents.  Of those, 63 came from a “commercial” mediation background; 59 from a “workplace” mediation background and 55 from a “family” mediation background. The remainder were spread across community, construction, education, environmental, financial, indigenous, organisational and “other”. Of all the respondents, 118 (87.4%) were either currently using online mediation or were planning to implement it in the near future, whereas only 14.2% stated that they regularly used online mediation prior to March 2020. The pandemic has obviously had a significant effect on the mediation market. Interestingly, 74% of the respondents who stated that they did use online mediation claimed that they would continue to use it at the same rate or greater in future.  It’s safe to say that online mediation is here to stay.

An online mediation, as the term suggests, is a mediation which is entirely, or partially, conducted via an online live video-conferencing platform. Online mediation has obvious benefits, including: the prevention of the potential transmission of disease; the physical safety of the parties (particularly relevant in family law and domestic violence mediations); logistical, time and cost savings; and the potential to use online facilities for pre-mediation conferences and intake meetings, even if mediations themselves occur in person.

On the other hand, the predominant criticism of the online mediation process was that it lacked the “human touch” of a mediation in person. One of the respondents simply summarised the experience: “online mediation enhances the efficiency of the process but diminishes its effectiveness.”

One example of how an online mediation can be brought to an abrupt end is when one of the participants simply “hangs up” on the video conference.  In a “normal” mediation, that would require the party to storm out of the building, which is not often seen if the mediator is doing a good job.  This makes it far more difficult for the mediator to manage emotionally charged issues than would otherwise be the case in person.

The skill to be learned for mediators will be to find the balance between the efficiency savings and the “human” element.

One interesting finding from the survey was the technological platforms the respondents had been using. Whilst there are mediation-specific online platforms (such as Immediation and Modron), most of the respondents had not even heard of these platforms let alone used them – only 2% of the respondents used Immediation, and 1% used Modron. It was no surprise that the vast majority (72%) of the respondents used Zoom, and 11% used Microsoft Teams. These results were achieved even after Zoom had experienced some cyber security last year.

The general conclusions from the Resolution Institute survey were:

1. Online mediation has increased greatly in popularity over the course of the pandemic and its prevalence looks set to continue even after the restrictions of COVID are lifted.
2. Despite there being a widespread perception that online mediation reduces its quality, many members believe that external factors, such as convenience, safety and decreased cost make it a sustainable option moving forward.
3. The vast bulk of online mediation is taking place on generalised video-conferencing platforms, rather than the specialised online mediation programs currently available on the market.

As an example of how an online mediation works, I was retained to act as a mediator in a commercial dispute between a franchisee and franchisor in early 2021. The representatives of the franchisor were based in Queensland; the lawyers for the franchisor were based in Melbourne (in lockdown at the time); the representative of the franchisee was based in another part of Queensland; and the lawyers for the franchisee were based in southern Sydney; the guarantor was based in rural NSW and his lawyers were also based in locked-down Melbourne. I also was based in Sydney. The mediation took place via Zoom.  It was a simple enough exercise for me to establish separate breakout rooms for each of the parties and their lawyers. As a mediator, instead of leaving my room and walking down the corridor to one or the other party rooms to engage in a private session, I merely flicked between each private room with the click of the mouse. That allowed a huge saving in time (and energy), however there were some annoying things that I noticed:

• whenever I entered a private room, I had the sense I was always “barging in”, since there is no facility to “knock on the door” and seek permission to enter what would otherwise be a private discussion. At some point, there were more than 10 people in a private session, and many were simply not looking at their computer monitors to determine whether I had entered the “room”. I would arrive in the middle of a private discussion. I quickly developed the use of “Hello everybody!” as I entered the breakout room.
• In one of the rooms, there were many people connecting via the use of only one camera. That did not allow me to see everyone in the room, let alone read any of the body language in that room sufficiently, which would otherwise not be the case in a face-to-face discussion.
• With lawyers sitting in front of their computers, it was too easy them for them to be side-tracked with emails, interruptions etc. It was much more difficult to focus just on the mediation.
• One of the participants in the mediation was using his mobile phone and was on the move! In a mediation that went for 8 hours, this became entirely unworkable.

By the end of the mediation (which unfortunately did not settle the dispute) I had been online for just over 7 hours and found myself far more exhausted than what I otherwise would have been in an ordinary face-to-face mediation. I would be interested to know whether the participants themselves felt as tired as I did. For a mediator, it is a mentally taxing experience, but one I will have to get used to by the sounds of it.

Should you get used to online mediation?

Given most people’s increased acceptance and use of Zoom and Teams during this current pandemic, be it either the work or for family/social connections, there is a growing acceptance that a mediation can occur entirely online. Home and many work computers come equipped with a camera and microphone, and to the individual user, Zoom is a free application.

It is important to note however that, for a mediator, you will require a premium level Zoom subscription, since any “free” Zoom call can only last for a maximum of 45 minutes. A premium Zoom account permits unlimited time for your meetings, which is obviously necessary in a mediation.

Using online platforms for pre-mediation conferences or “intake meetings” is an obvious advantage over face-to-face meetings. In my experience in many commercial mediations, these pre-mediation meetings usually occurred over the telephone in any case.

Lastly, more training will be required for mediators to apply their skills in an online environment to learn to balance the absence of the human interaction via a computer screen.

Is online mediation is the way of the future? Yes, it is. The simple reason is that the clients will prefer them as it offers them a cheaper, safer and more convenient forum to attempt to resolve their disputes.

Mark Addison

Consulting Principal

Keypoint Law Pty Ltd

[1] Online Mediation now and into the future: White Paper: trends and attitudes towards online mediation, June 2021 Resolution Institute of Australia and New Zealand