A brief introduction to mediation
Mediation is the less talked about little brother in the dispute resolution family. In short, mediation is a form of dispute resolution in which parties come to a voluntary settlement whilst being presided over by a neutral third party who does not adjudicate the dispute. While it has gained traction in the last 20 years, mediation has been present in the Malay Archipelago for quite a while. For example, prior to its role being absorbed into the British Administrative System, Penghulu’s would preside over disputes with one form of resolution being the encouraging of parties to come to a voluntary settlement. Similarly, in Chinese communities, the system of t’iao jien, provided for voluntary settlements to be achieved whilst being presided over by the head of the community. In today’s world, mediation is a valid form of dispute resolution with statutory backing in the form of the Mediation Act 2012.
An important aspect of mediation is that its focus is about coming to a solution that both parties can live with. This may seem foreign to many as in most disputes, the main aim is to either bend the opposing party to our way of thinking or to get an affirmation that Party A’s position is preferable/better than Party B’s. For example, in a criminal trial, where Defendant A is accused of shoplifting, the end result of the dispute process is to prove/disprove A’s guilt. It is not about finding a compromise between A and the shop owner. However, outside of criminal and fraud cases, there are many times where it may be beneficial, either from a commercial viewpoint or for a continued relationship, to find solutions outside the binary positional win/lose scenario.
Mediations are usually conducted as either a joint mediation or as a shuttle mediation. Joint mediation, as the name suggests, is where all parties meet in a single room and the mediator takes the parties through the session. Shuttle mediation is where the mediator has private sessions with each party in isolation of the other(s) and with the permission of the party, the mediator may convey certain select information to the other.
The above is merely a brief introduction into mediation. There are many other aspects for and against choosing mediation as a dispute resolution option but that is an article for another time. This article will focus on the possibility and adaptability of online mediation.
The Future, Now.
Parties who mediate tend to be motivated to find an amicable solution. The mediator’s role is not so much as to determine a solution but to enable and assist parties in coming to a solution together. Bearing that in mind, the key difference between online and mediation pre-Movement Control Order is the physical presence. Below, we will explore the benefits and disadvantages of moving mediation online.
- Social Distancing
The first, and most important consideration, bearing in mind the times we are in, is that online mediation allows for participants to remain in their homes or at the very least, take part in social distancing measures. Joint mediation sessions can be done over a group call which allows all participants to maintain their distance.
2. Borders, Closed
Secondly, with borders, both international and across state lines, closed, it enables parties to engage in mediation without having to break laws. Whilst courts have begun to resume operations in stages, using online mediation, parties can resolve conflicts quicker because it allows for their dispute to be heard and processed faster.
3. Cost efficient
With the lack of accommodation rental required to run a mediation session (sometimes requiring up to 3 rooms or more for a shuttle mediation), online mediation allows for costs to be reduced. Furthermore, for mediations involving parties from different states/ countries, travel costs could also be substantial, with these costs usually being paid by the parties themselves. With online mediation, however, a slurry of costs normally incurred would become a thing of the past. Costs for accommodation, travel, and refreshments (an important matter to consider for any mediator) would be eliminated.
This in turn would make mediation a cheaper option than before which may induce more parties to participate or at least consider mediation.
As with any new medium, the transition to online mediation is lined with several hinderances.
- Is anyone else there?
A big motivator in considering mediation is privacy. Disputes with sensitive information or on issues that parties feel should be kept private might be tempted parties to use mediation. However, with online mediation, parties do not have the certainty that the other participant is unaccompanied.
One method to overcome such doubts is to have lay participants attend their legal advisor’s premise and conduct the mediation from there. Where such travel is prohibited or not feasible, parties could explore options such as affirmations by the parties to state that they are indeed alone. Alternatively, parties could agree to attend a trusted organisation and use one of their rooms. The organisation would provide the guarantee that the participant is alone in the room. For example, the use of a nearby third-party solicitor’s office to which the solicitor would give an undertaking that the participant was alone.
2. I… n’t hear… ? Can … hear me?
With all online technology, there is fear of calls dropping or platforms crashing. This is an unfortunate but unavoidable risk. To put this into perspective, not many readers use WhatsApp’s call function with the fear of the call dropping. It may happen but the call goes ahead nonetheless. Whilst the stakes in a mediation are much higher, the risk of a WiFi signal not being strong enough or a platform crashing at the time of mediation cannot be completely eliminated. However, using more trusted applications, such as Skype, Skype for Business, Zoom or even WhatsApp in certain situations, may minimise the risk.
More often, the concerns regarding online technology relate to the familiarity and comfort in using the platform. To combat this, legal representatives are urged to do a trial run on the agreed platform with their respective clients to get the clients comfortable. Legal advisors should consider forming a WhatsApp group with their client for ease of communication whilst within the joint mediation sessions to avoid interruptions and to allow for confidential conversation.
3. Advocacy and Mediation Skills
The online transition will also require the legal professionals and the mediator to adapt their skills in light of the new technology. As a trained mediator, this author can affirm on the importance of body language readings for a mediator. Subtle body cues will definitely be missed in an online setting. Mediators use such skills to determine if parties are engaging in the session or to probe further into certain points raised by parties. ThusWithout this, mediators will need to adapt their inter-personal skills to accommodate for this lack of sensory input. One suggestion is that mediators may have to use more targeted questioning and check back more often with participants to ensure the participant has voiced all their points.
Online mediation also reduces the “stickability” of a mediation session. In a physical mediation, in order to quit the session or leave, it would involve actually having to leave the space. Whilst emotions may run high, the participant would have to make a physical effort. Social etiquette and voiced concerns from the party’s legal advisor or the mediator may convince the party to return to the table. However, with online mediation, the party merely need to press a button. There would be no chance of getting them to reconsider within the ambit of the mediation. It would need to be taken offline. If the party so wished they could even block incoming calls. As such, mediators will need to be aware of such a possibility and take measures to avoid this scenario.
Mediators will also need to be aware of the potential of overlapping communication and/or interruptions from one party. Whilst interruptions can be expected in any mediation, in certain pauses, participants may be tempted to jump in creating overlapping conversations. One solution is for mediators to mute all parties and only unmute parties when it is their turn to speak. This gives an opportunity for all parties to speak their mind and their speech time can be limited as the mediator can for once actually mute a participant.
Legal advisors will also need to get themselves comfortable with online technology. Since April 2020, we have heard reports from advocates that online hearings are a little jarring and can be uncomfortable as the advocate does not have control of the volume their voice is received nor can they be certain their points have been transmitted without interruption by technological issues. This is another issue that will be resolved with time. Once advocates gain that confidence in online advocacy, we will see higher quality online representation which could rival traditional advocacy.
In summary, online mediation is the future. It is not a matter of if but a matter of when online mediation becomes the norm. In any event, it will become a lot more widespread until a vaccine for Covid-19 is found. The simple truth is that while online mediation has its barriers, disputes still need to be resolved in the age of social distancing and online mediation is slowly becoming an attractive alternative.