The message from our courts is that they are busy and expect to get even busier. The courts also continue to reinforce the message that they will punish a party that refuses to engage in mediation.
If you don't believe me, have a read of the recent case of DSN v Blackpool Football Club Ltd [2020] EWHC 670 (QB). Or, if you are still unsure, have a look at the case of BXB v Watch Tower and Bible Tract Society of Pennsylvania & Ors [2020] EWHC 656 (Admin). Just to be clear, it simply doesn't matter how good you think your case is. If you refuse to mediate, you can and should expect the courts to deal with you harshly when allocating responsibility for the payment of inter-party costs.
So how can we mediate if face-to-face meetings are not currently allowed? The answer is that mediations are routinely taking place online. Is it the same as mediating in person? The answer is clearly no, but there is no doubt that on-line mediation, particularly video mediation, is thriving and here to stay. We have the technology and we all just have to get used to using it.
Having conducted face-to-face mediations for over 20 years, I confess to approaching my first video mediations with a sense of fear and trepidation. I worried incessantly about the technology letting me (and the Parties) down and even prepared back-up plans to move to a telephone mediation if things went to horse do-dah. I created a series of virtual break-out rooms that, after the first joint session, I was able to move people into. I had private discussions with the Parties and eventually encouraged and guided the Parties into the negotiation phase of the mediation. The Parties were able to easily share documents that everyone could see and, when deals were finally struck, I was able to move the lawyers into a break-out room to allow them to finalise a settlement agreement.
They do say that the proof of the pudding is in the eating. The mediations proceeded without any technology failures and eventually settled. So, all in all, my worries were misplaced and I am now a convert of video mediation.
I am not going to suggest that video mediation is better than face-to face-mediation but there are some advantages that are worth thinking about:
- People can stay in their homes (or offices)
- It is arguably less stressful for participants
- There are tangible savings in travel and accommodation costs for all Parties
- There are no room hire costs
- There are several on-line platforms initially developed for video conferencing that have been modified for use in mediations, and others that have been invented specifically for mediations. I am not going to advocate the use of one particular system over another because it is not about the system, it is about Parties embracing the brave new world we live in and giving video mediation a go.
Whilst lawyers and corporate recovery specialists are undoubtedly going to be kept busy in the months ahead, we all have to embrace the new normal and adapt. We are in for a rough ride over the coming months but I am confident that the UK will adapt, survive and thrive.
If you wish to discuss a particular mediation and its suitability for video mediation please do not hesitate to get in contact.