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Covid-19 has completely shaken up the legal industry and provided some potentially overdue modernisation. Mediations in particular had to revolutionise overnight to accommodate social-distancing requirements and comply with the Government’s lockdown measures. As a result, many mediators made the move to virtual mediations, using platforms such as Zoom.
Given mediation is a key form of alternative dispute resolution, trainees completing a Commercial Dispute Resolution (CDR) seat at TLT typically attend at least one mediation during the course of their seat.
During my time in CDR, I attended one virtual mediation and helped organise four others. Admittedly, I was disappointed not to attend an in-person mediation. Cynically, I thought that this form of negotiation could not be as effective online and that technical glitches would frustrate the process (especially if participants kept forgetting to unmute!). However, the flexibility of virtual mediations and the use of breakout rooms streamlined the process and, from my experience, was still effective at encouraging parties to reach a settlement.
As I was able to assist with organising, preparing for and attending a virtual mediation, I wanted to share my experience of what a trainee typically takes on at each stage.
As parties are expected to resolve their disputes whenever possible, parties can agree to mediate at any stage of proceedings. As a trainee, you may be asked to draft correspondence to the other side suggesting mediation or accepting the other sides’ invitation to mediate. Additionally, as a trainee, you usually make enquiries with various mediators to ascertain their availability, price and experience on the type of dispute.
The virtual mediation I attended concerned a breach of contract and professional negligence claim our client (a company which owned and operated a nightclub) was threatening to issue against an insolvency practitioner for negligent insolvency advice. The mediation served as an attempt to settle the dispute before our client issued proceedings. My role at this stage was to make enquiries with mediators with experience of these types of claims, in addition to finalising the mediator’s appointment once the parties agreed the mediator.
In preparation for the mediation, I assisted with collating the mediation bundle, exchanging the position statements and preparing the settlement agreement in anticipation of a successful mediation. Additionally, I attended a tech run-through with my colleague, client and the mediator to ensure we were all comfortable with the technology and to avoid any mishaps on the day.
Depending on the complexity and length of the dispute, the bundle can be substantial. As a result of the pandemic, the CDR team at TLT has mainly moved towards electronic bundles which tend to save a lot of time and are far easier to circulate to all parties – plus they are more eco-friendly and easier to navigate due to hyperlinks!
An in-person mediation usually begins with the parties presenting their opening statements in the same room before moving to separate rooms. The role of the mediator is to act as an independent third party who guides the discussions and shuttles back and forth between the parties with comments and offers.
A virtual mediation replicates this structure in the sense that the parties are all in one virtual room during opening statements (unless they opt not to do so), before the mediator separates the parties into individual breakout rooms. The mediator then moves between breakout rooms in a similar manner to an in-person mediation.
During the course of the day, I was encouraged by my colleague to engage in discussions with the client regarding strategy, our appetite for settlement and what we would consider a reasonable settlement sum. Additionally, I kept clear notes of the information the mediator provided and assisted with any calculations.
Despite being virtual, the opening statements during the mediation I attended were effective and clearly set out each party’s positions. Pressure was put on both parties to settle and being online, the parties seemed more focused and set on reaching a reasonable settlement more quickly - perhaps influenced by Zoom fatigue! Fortunately, the parties reached a settlement and signed the agreement by 7pm, a rarity for most mediations!
Given the flexibility and ease for all parties to attend a mediation via Zoom, it is likely that they are here to stay even as lockdown restrictions continue to ease.
Emily Beckwith is a fourth seat trainee solicitor for TLT, currently in the General Commercial and Commercial Regulatory teams, having undertaken previous seats in Commercial Dispute Resolution, Corporate (Renewables) and Commercial Property. Emily is based in the Bristol office.
03 July 2021