KNOWLEDGE

Reflections on Remote Mediation

Morton Fraser Partner Rhona Adams
Author
Rhona Adams
Partner
PUBLISHED:
20 January 2021
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category:
Blog

The lockdown has represented something of mixed blessing to proponents of mediation.  

The lockdown has represented something of mixed blessing to proponents of mediation.  On the one hand, stasis in the court system has presented an opportunity for all remote forms of ADR.  On the other hand, the prospect of getting to grips with the technology was a pretty daunting one for those of us who struggled even to turn on a microphone at the beginning of last year!  Ten months down the line, as we find ourselves back in lockdown, this seems a good point at which to reflect on the experience of conducting remote family mediations.

Of course, remote mediation is not new - there were already various Apps designed to facilitate it pre-COVID-19. Family mediators in Scotland were not, however, practising remote mediation on any large scale and for us, the last year has been a voyage of discovery.   Following lockdown, the demand for remote mediation was in my experience very much client-led.  I had a couple of mediations which were already underway and the clients wanted to continue with the process after lockdown had started.      

Whilst mediating remotely has presented some challenges, some real positives have also emerged.  Getting comfortable with the technology was first major challenge. How easy would it be in mediation to power-balance and to ensure that each party had an opportunity to be heard? And how would one deal with documents in a financial provision mediation, for example? It soon became clear that having a 'dry run' beforehand was important to make sure that the technology was working for everyone.  I also concluded very early on that if one of the parties was experiencing certain technical issues, for example being able to heard but not being able to work their video camera, it was much better to draw stumps and reconvene once the technology had been sorted out, rather than capitulate to clients who were very keen to press on anyway.   

I have heard it suggested that one risk of conducting remote mediation is that one of the parties might surreptitiously record it (as can easily be done with most video conferencing Apps) or might have someone else present in the room with them during a mediation session.  In reality, I don't think these risks are any greater when mediating remotely than when mediating in person.   The parties can be asked to confirm that they are on their own at the start of mediation.  We have tweaked our Agreement to Mediate to reflect that the parties agree not to record the sessions. 

Handling documents presented another challenge.  Typically, in an in-person mediation, we will distribute copies of vouching to both parties and then proceed to work through this together, creating a Schedule of Matrimonial Property on a flipchart.  Proceeding remotely requires a bit of advance preparation: I have taken to circulating a pdf bundle of vouching to each party well before the session so that they each have an opportunity of printing this if desired.  It’s obviously not possible to work with a handwritten flipchart but it is possible to populate an Excel Schedule of Matrimonial Property, which also has the great advantage of adding up the figures accurately!  I felt that I crossed a Rubicon when I learned how to share the screen displaying the draft Schedule, which we could then talk through during the session.

The main advantages that seem apparent from the experience of the past 10 months are that remote mediation is:-

Focused: Many mediators report that they feel that remote mediation sessions are actually more productive, and less susceptible to distraction, than mediations conducted in person.  

Manageable for clients: Some mediation clients have commented to me that they have felt more comfortable mediating remotely, when they are in a different place from their ex-partner, rather than having to be present together in one room.      

Convenient:  Provided that a client has a sufficiently private space and access to a device, mediating from home or from work can be a lot more convenient than having to traipse into a city centre office.  It can be easier to slot into a busier schedule and can therefore permit sessions to happen more quickly and flexibly in some cases than in-person mediation. 

Not constrained by geographical boundaries: One great boon of working remotely is that it opens up new possibilities to mediate where geography might previously have stood in the way.  Prior to 2020, I would not have contemplated taking on a mediation where both parties were hundreds of miles from my office, but that would not now pose an issue. 

Even once life gets back to normal, such that face to face meetings can freely happen once again, I don't think that the practice of mediation will simply revert to its pre-COVID-19 state.  I would anticipate offering mediation clients the option either of mediating in person or remotely, and I suspect that many other CALM mediators will adopt a similar practice.   Since many courts are also now operating remotely, the prospect of resolving disputes in that way will hopefully seem less alien to people.  

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