With the increasing number of cases of the coronavirus and stricter provisions and guidance being issued by the Government, it may soon be the case that mediation cannot be carried out in person.
The Government has issued guidance on ‘social distancing’ which, in theory, would prevent parties gathering to discuss the potential settlement of a case and therefore restricting the use of mediation. The Government have further threatened that this guidance may soon become law and any social gathering would become unlawful. Whilst the interpretation of ‘social’ may be in the mediator’s favour to allow mediation, it is likely that most mediators and parties involved would prefer an alternative mechanism of mediation as opposed to the traditional manner for the protection of their own health and prevention of spreading the virus.
Below, we have summarised the alternatives for the parties and mediators consideration.
Alternatives to in-person mediation
Decide to avoid mediation and go straight to trial
The effect of the coronavirus does not mean there will be no further disputes, and the need for the parties to consider mediation instead of proceeding to trial will continue. It is actually expected that the number of disputes will increase on the basis that many contracts for services can no longer proceed due to the Government’s restrictions, along with increasing employment disputes and inevitable family disputes.
It is often the case that mediation will not work in certain circumstances, however, it is always encouraged by the Courts as a starting point. It is unlikely that a Judge will allow mediation to be skipped due to practical implications, if the Judge believes that the dispute could have resolved at mediation. Avoiding mediation is not therefore a particularly palatable option.
Mediation through video/conference calls
There is no written rule requiring a mediation to take place in person. By way of example, the small claims track mediation scheme which is operated by way of telephone calls. Since the interruption caused recently by the coronavirus, we have been contacted by a number of mediators to confirm that their preferred alternate method of mediation is the use of video/conference calls.
One mediator, who we have regular contact with, has been in touch to advise of us of software, which he uses when carrying out mediation through video conferencing. It is encouraging to see this method has been used prior to the coronavirus outbreak and we advise this is the next best method to a traditional mediation.
The way it works is through a number of virtual rooms being created which the mediator can move between to discuss a settlement as they would in the traditional manner. There will be a room for each party within the dispute, a middle room for the mediator and any parties he may invite and a room for any witnesses and/or experts who may be used. An unlimited number of people can access a room by invitation, which means all individuals of one party do not have to be in the same room. This allows all individuals to be involved even when isolated.
If an agreement is reached, the mediator will be able to witness the signature through the video call and a photo of each signed document can be sent to the mediator.
This option is practical for most as many individuals now have smart phones which are already set up for video calls.
Mediation with smaller groups
Some mediators are willing to carry out a traditional mediation still on the basis that anyone who is infected will self-isolate. Whilst this means mediation can continue as normal for the time being, it would be recommended to avoid this if possible to prevent the further spread of the virus. On this basis, we would suggest that no vulnerable individuals attend mediation and if possible, only one individual is sent from each party. This individual can then contact other individuals/counsel when necessary. The aim would also be for any evidence to be provided by written statements to prevent the need for further attendance. Witnesses and experts can also telephone in to answer any questions if this is needed.
In theory, a dispute between two parties can therefore be mediated with only three people, being the mediator and a representative from each party. Whilst most mediators would allow more individuals to attend, we suggest this is the starting point where mediation in person is needed. It is also advised that local mediators are used to avoid the risk of spreading the virus across the country.
What this means for your case
As summarised above, it is clear that cases will continue as normal with mediation still being accessible by alternate means. We therefore foresee no reason for any delay in cases and are advising all clients to carry on as normal in respect of progressing any case they may have.