The question arises during COVID-19 as to whether mediations could continue given the social distancing rules, and if so, whether they would be just as effective. This article explains the concept of mediation and whether it continues to have real benefits during social distancing.
What is mediation?
It is widely accepted in the contentious trusts and probate world that mediation is a suitable and often trusted method of dispute resolution. Statistics suggest more than 90% of cases settle at mediation, or within a few weeks of it concluding.
It is not surprising that trust and probate disputes are prone to settling at mediation. Such disputes are naturally private and family matters. The estate is also a fixed pot and protracted litigation only serves to reduce financial resource available. Mediations allow the parties to resolve their disputes in the most cost-effective way avoiding the disproportionate costs of court proceedings.
Mediation occurs when the parties and their lawyers meet with a neutral third person (the mediator) to consider terms of settlement of their dispute. The mediator’s role is to assist the parties towards a negotiated settlement of their dispute. The process is voluntary, and it is not designed to reflect the formality of court proceedings, or to necessarily predict the outcome of the court hearing. The parties are encouraged to find common ground and consider the strengths and weaknesses of their case. Mediation allows for more flexible and creative solutions which can avoid the harsh impact of the court imposing a decision, which each party (or both) may disagree with.
Mediation has the following advantages:
- The cost of achieving progress is substantially reduced as compared to court proceedings;
- A settlement can be reached quickly. It is not unusual for cases to be resolved in under six months (compared to 1-2 years for court proceedings)
- Whilst mediation does not guarantee that each party will be happy with any agreement reached, a negotiated settlement brings certainty, an end to the claim and avoids the anxiety and cost of court proceedings.
Even if mediation does not result in settlement, parties are likely to have benefited from the process. By attending the process, parties can better understand their own case and their opponent’s. This may allow the issues to be narrowed and the parties can reach agreement on other useful issues in the claim such as disclosure of documents or how to manage costs in the most proportionate manner.
How does COVID-19 affect mediation?
Before COVID-19, the usual practice was for mediations to take place physically. This does not necessarily mean that attendees meet each other face to face, but that the parties are at least present in the same building. Given that social distancing is in place, this is no longer possible.
There was concern at the time of the outbreak that mediations would be cancelled, and that settlement of cases would be frustrated. Given that most parties to a contentious probate case wish to avoid delay and reach a solution as soon as possible, there was impetus for parties to carry on mediating. To this end, various professionals have attempted mediations remotely using several online applications including ‘Zoom’. The Zoom application appears to be the most popular, as it allows mediators to separate parties into virtual rooms and then later merge relevant parties together for meetings. This allows the confidentiality of the process to be maintained. The technology has proved effective with a stable level of service and clear audio and picture quality.
Benefits of virtual mediations
Shoosmiths has now attended a number of remote mediations via Zoom, with more scheduled. Our experience has shown that these mediations proved effective to bring the parties towards settlement. There was little lost by attending remotely.
In particular, the benefits of remote mediation seem to be:
1. There can be cost savings – for example there are no travel expenses nor travel time incurred.
2. The luxury of mediating from home has the benefit of convenience when mediations run past 5pm. The parties can remain refreshed at home which keeps up the desire to reach settlement. In addition, there is no risk of “missing the last train home”.
3. For clients, a remote mediation reduces stress and anxiety. Often, even being in the same building as the opponent can induce anxiety. There is often a complicated and time-consuming process involved in manging comfort breaks to avoid the parties encountering each other in communal areas of the building where the mediation is hosted, such as lifts or toilets. Engaging in settlement from home can alleviate these problems and can be the right approach in some cases, especially where clients are elderly, struggle to travel or simply wish to avoid being in contact with their family members.
As with all mediations, success depends on the preparation. Following our experience of remote mediations, it is considered that preparation has renewed importance. To work remotely, clients must be fully briefed on the issues, the procedure of mediation and the range of settlement must be carefully explained and understood in advance of the process. Our tip is for the mediator to be involved at an earlier stage and for position statements to be exchange at least a week before mediation. This allows the parties time to ensure that all issues are understood and investigated before the day itself. If these conditions are met, there is little prejudice from hosting a mediation remotely.
In conclusion, technology has allowed mediation to continue and more use of it may be a game changer in the long term. It is considered that there is much more to lose by not acting and in so doing allowing disputes to stagnate (especially where assets are depreciating).
We believe that mediations should still be attempted where appropriate and (perhaps increasingly) are to be viewed as a perfectly sensible and proportionate use of time and costs, which is not hindered by COVID-19.