Over the years I have been sceptical when the topic of “online dispute resolution” was raised. Yes, I can see that sophisticated systems can moderate financial and consumer disputes, but when it came to relationships I was not persuaded.
In March 2020 when everything changed, the question of what would happen with employment disputes loomed large. Tribunals largely functioned on the basis of all of the relevant personnel being together in the tribunal room and that stopped due to COVID‐19 restrictions. Over the months since then there has been an evolution with virtual hearings, hybrid hearings and socially‐distanced hearings. Is this better than what was in place before? I think that few would argue that it is, albeit there will be lessons to be learned and positives to be taken from the experience. What will happen when the world returns to more of a normal state? Will tribunals return to the pre‐March 2020 situation? I doubt that there will be a complete return, but suspect that many aspects of the pre‐COVID‐19 tribunal system will be as before.
So what of mediation? From early on in lockdown, mediation started happening online via Zoom and other platforms. I was sceptical indeed on the basis that surely the key magical ingredient of being in “the room” would be missing. Whilst it might be possible to make something of the process, it surely could not be a long‐term workable solution? A year down the line from starting on that process am I of the same view? Not at all. Whilst I would still prefer in pretty much all cases to be in the same place as all the other participants and think that it is not possible to build the same degree of rapport with parties online as in the room, my experience is that the case for online mediation is unassailable. But of course, it is not the preference of the mediator that counts.
What are the advantages? The first, by a country mile, is that of convenience for the parties. They do not have to come to the mediation but it comes to them. Recently, I have mediatedin a dispute where the parties were 400 miles apart so to attend in the same physical location would have not been easy and, indeed, may not have happened. Using the online process, geography was irrelevant. Secondly, being in their own chosen surroundings can allow the parties to be more comfortable with the process. My experience is that, setting aside convenience, that there has been a more direct, assured and considered approach to the process by the participants than where the parties are in the same room. The absence of the frisson of being in the same place can lead to a more forthright discussion. Of course, they are often working to a situation where they will be back in the same room at some point in the future so that frisson cannot be ignored. I have found that interruptions by parties are much less online than in person. With a lot of work and social lives being conducted on Zoom, it has become common experience that talking over one another does not work and, in the mediation setting, it has led to a better quality of listening in person. I would also venture to suggest that it is less of an event than a process where there is a mediation in person. The “in person” mediation tends to involve a great deal of organisation to get the parties together for a defined period. That takes time and effort with the mediation process being often defined by the time that has been set aside. Conversely, virtual mediation is simple to arrange and easy to continue. Another significant factor is cost: on all sides expense can be less.
What of the disadvantages? As I have said, there is a significant element of the human interaction that can be lacking but with skilful interaction by the mediator you can get there. Building rapport with the parties is not quite the same but it is possible and given that, setting aside COVID‐19, a great deal of human life is lived on digital platforms that may be good enough. Technology allows all of this to happen but it can be the reason it fails both in terms of connection issues and the ability of parties to use the technology. It has to be accepted that not all situations will be suited to virtual mediation for the parties but in the vast majority of cases it will be. Dealing with the technology failure scenario, the mediator should always have a Plan B to continue by telephone or to reconvene. It is also relevant to mention fatigue. Hour upon hour on a screen does not work well and for a mediation is not productive. I suggest that a mediation session be relatively short in duration with breaks built in for the parties. It is easy for the mediator to manage this, and for a number of shorter sessions to be the norm for mediation, rather than one long event arranged as such given the difficulties of getting the parties together.
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We hope beyond hope that life will return to something like it was before but the reality may well be that we will only partly return to that. Not because of COVID‐19, but because of the experiences we have had during the last year, things will be different and we should strive that they are better and more effective. This will certainly be the case in relation to the workplace where many will wish to continue working from home and this will lead to continued use of video platforms for everyday interactions. It is my view that, for mediation, virtual mediation will be the default or first option going forward. For reasons of convenience, cost and time, it makes eminent sense to do so. Whilst mediators will argue, with some justification, that something is lost in virtual mediation, the gain is greater.Of course, there may be compelling reasons why some cases will need to be judicially determined but, in the vast majority of cases, there is a great deal to be said for considering the use of mediation to see if parties can resolve their disputes — and it seems to me that virtual mediation is now the starting point. It is equally applicable to situations which have not yet made their way into the tribunal system and to disputes between employees. The Judicial Mediation scheme is to be commended but it does arise well into the life of a dispute when all parties may have incurred significant costs; when individuals may have suffered with the anxieties of litigation and where much time has been spent by organisations dealing with a dispute when resources could have been more productively used.
A critical factor here is the absolute obligation that rests with solicitors to understand and advise upon the use of mediation. Law Society guidance makes it clear that solicitors should have a sufficient understanding of commonly available alternative dispute resolution options to allow proper consideration and communication of options to a client in considering the client’s interests and objectives. In every case, a solicitor
“should be able to discuss and explain available options, including the advantages and disadvantages of each, to a client in such a way as to enable the client to make an informed decision as to the course of action and procedure he or she should pursue to best meet their needs and objectives.”
In my view, this entails that the solicitor must also understand the possibility of remote mediation. This does not, of course, entail that mediation should be the default in every case but rather an informed decision should be reached about its use. In seeking to get a sense of the level of knowledge and use of mediation in Scotland I have recently launched a survey amongst Scottish lawyers. At the time of writing the survey is still open but early results show that 10% of those responding do not have a good knowledge of mediation, 14% never suggest mediation and 45% infrequently suggest mediation. This suggests that the profession is not making the most of this process.
In conclusion, I do wonder if the experience over the last year may bring about a significant shift in thinking in relation to the use of mediation in employment disputes. We must look at this not from the perspective of lawyers, judges or mediators but, rather, the users of the system. What they seek is a result and I suggest that a good hard look needs to be taken at how results can be delivered for a generation who have been brought up in the digital age and have had their work lives defined by it in the last year. I looked again recently at a book I picked up some years ago: Tom Chatfield, How to Thrive in the Digital Age (Macmillan, 2012) where he poses the question “Can we live well with technology?” It is interesting to revisit this premise where so much has happened since the book’s publication. I think he captures the dynamic well when he says:
“It is a dizzying maelstrom and a profoundly disturbing one at times. Yet it is still us, in all of our humanity, entering these new spaces and having these experiences.”
First published in Westlaw UK
