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 –