Mediating in the midst of COVID-19

In the midst of the cancellation of events, potential school closures, self isolation and quarantine periods, it is understandable that you or your clients may have concerns. However, don’t assume your only option is to cancel any mediations already arranged, or delay arranging future mediations. For many claimants the day has been a long time coming and further delays just cause more angst and increased costs for both parties.

Over the past 6 months I have conducted mediations with parties interstate and in regional areas. The quality of video conferencing using platforms such as Zoom and Skype means that many elements of the mediation process can be performed remotely and online. There is no doubt that the online mediation will be different in look and feel to a face to face mediation, however that doesn’t mean it can’t be effective.

For example, on the Zoom platform:

  • Initial discussions between the mediator and the parties can take place via private Zoom meetings or telephone conference calls;
  • The joint session can be arranged by all parties joining a Zoom meeting in which the mediator facilitates the parties’ discussions. Any concerns about background noise can be addressed by parties “muting” their sound. Parties can type in a question if they did not hear a comment or want something clarified. The mediator will moderate the answering of questions; and
  • Parties than can break out into their private meetings and continue to communicate via the mediator convening private Zoom meetings. Offers can then be communicated via the online platform or email/SMS.

The first time that you participate in an online mediation may involve a little trial and error – for that reason I suggest a preliminary online conference to ensure that everyone is familiar and comfortable with the technology. I also suggest a few “rules” that may assist the online alternative being productive:

  • Sign and circulate the mediation agreement prior to the online conference commencing (including any pre-mediation conference);
  • Ensure that each party in the mediation is aware of the importance of confidentiality and is participating in an environment where confidentiality won’t be compromised;
  • The exchange of position papers and schedules of damages at least a few days before the mediation will assist to streamline the process;
  • Work with the mediator to agree an agenda for the joint session so that it is focussed and concise;
  • Prior to the mediation, discuss with your clients whether they wish to make a statement in the joint session and help them plan what to say;
  • One person should speak at a time. Talking over the top of each other is not only disrespectful but can make the process seem “clunky”. Allow the mediator to guide the flow of the discussion;
  • Have alternative/simultaneous communication options on standby (e.g. email, phone or SMS) to ensure that any glitches in technology won’t bring the whole thing to a halt;
  • Have in place a way to circulate any settlement documentation. You may wish to include in any Deeds the clause providing for the exchange of counterparts;
  • Be prepared to do things a little differently. The mediator may need to combine technologies (e.g. Zoom and phone calls) to build rapport with the parties – work with the mediator in that regard.

So whether you or your clients are impacted by COVID-19, are choosing to self isolate, or are bound by company policies preventing face to face meetings, your mediations can still proceed.

If you would like to discuss any aspects of mediating in ways that do not involve face to face meetings, please contact me on 0421 048 456 or by email – jsomerville@r3resolutions.com.au

Preparing for mediation – 4 common grievances, and what mediators think about them

Over February and March I have been running training seminars on getting the most out of a mediation. Most people agree that mediation is an effective form of alternative dispute resolution that often leads to settlement on the day, or shortly thereafter. However, when talking about frustrations in preparing for mediation a few common themes emerged:

1. Lengthy debates over the content of the mediation bundle – you know how this one plays out – a week or so before the mediation one party suggests an index for the mediation bundle and then a flurry of emails follow debating over whether certain documents produced under subpoena should be included in the bundle. Days pass, more costs are incurred and then, either one party begrudgingly agrees for a document not to be included (and is then primed to fight harder for something in return) or the parties agree to include everything and the mediator’s bundle is voluminous and akin to a brief to counsel. I have previously written about why the mediation is more important than you may think, however its purpose is not to convince the mediator that one parties version of events should be accepted. Mediators are not triers of fact – they should not proffer any opinion on whose version of events will be accepted. The mediation bundle serves the important purpose of giving the mediator a general understanding of the nature of the dispute and the underlying interests of the parties. So don’t waste the time and money debating over the small stuff – limit the bundle to the key documents: the pleadings (or complaint), served liability and quantum evidence and evidentiary statements are usually sufficient.

2. Late service of evidence – It’s not uncommon for new liability or quantum evidence to be served on the eve of (or during) the mediation. Sometimes it’s unavoidable, sometimes it’s not – however the consequences of late service can be significant. All parties attending the mediation must have authority to reach a settlement on the day. If one of the parties is a corporation or insured the person attending the mediation will most likely have a limited settlement authority. The limit of that authority is based upon an evaluation of the case that has taken place some time prior to the mediation. Therefore, it is essential that parties are provided with all relevant evidence and particulars well before the mediation. There is little point in withholding evidence or information (intentionally or otherwise). Think of it as a pie – the representative will come to the mediation with a certain sized pie based upon the assessment made prior to the mediation – serving evidence or information on the eve of, or during the mediation, won’t make the pie bigger, at best a phone call may get a bit of sauce on top. Further, not only does the limit of authority often present an insurmountable barrier to resolution, you are making the mediator’s job that little bit harder. Late service of evidence often alienates and antagonises the opposing party – thereby widening the gap between the parties and creating more barriers for the mediator to break down to move the parties into the zone of negotiation.

3.  Delays in the parties serving position papers and schedules of damages – Delays in the service of the position paper and schedules of damages can cause the same problem as the late service of evidence. That is, parties advise their clients on strategy and settlement options well before the mediation day. If the position paper or schedule contains something new (evidence or legal argument) the parties may simply not have the time to thoroughly consider and advise on a change in strategy or settlement options.  Back in the day, Sir Laurence Street ordered position papers and schedules of damages to be served several weeks prior to the mediation. Unfortunately that practice seems to have gone by the wayside. It’s my practice to suggest that the claimant’s position paper be served 5 business days, and the respondent’s 2 business days, prior to the mediation- compliance with that suggestion is mixed.  If you want to maximise the chances of a resolution being reached at mediation it is in your client’s best interests to ensure that all liability and quantum evidence and arguments are clearly articulated well before the mediation.  I have certainly been involved in several mediations that are terminated when a private health insurer payback (often for many tens of thousands of dollars) is presented for the first time during the mediation.

4. Tone of the position paper – several people mentioned during the seminars that the tone and content of the position paper was so inflammatory that their clients were offended and  went into the mediation with a very fixed positional mindset. While some lawyers do not provide a copy of the position paper to their clients, many do. Therefore it is important to be conscious of the content and tone of the paper. A position paper is not akin to a final submission or a comprehensive advice on liability and evidence. It should be prepared with the goal of the mediation in mind – that is, to end the dispute. Most mediators prefer a concise position paper that, in a clear and non inflammatory manner, outlines the factual and legal issues in dispute, a parties position in relation to those issues (and the grounds upon which the Court would be asked to find in your client’s favour), if there are obvious challenges to a parties position, why that party does not consider them fatal, and concludes with a reassurance that your client accepts that a compromise will need to be reached. As an aside, if the matter involves significant trauma to one of the parties, attempt to minimise the extent to which the position paper retraumatises that party; for example, state you reply upon the opinion expressed at page X of expert Y’s report rather than repeating that opinion.

So, when preparing for your next mediation, avoiding these common grievances may go a long way towards maximising the chances of the claim settling at mediation.

If you would like to learn more about R3 Resolutions’ approach to mediations, subscribe at www.r3resolutions.com.au or follow us on Linkedin. You can now check our availability and book a mediation directly here